The Maryland constitution of 1851

JOHNS HOPKINS UNIVERSITY STUDIES

IN

HISTORICAL AND POLITICAL SCIENCE

(Edited 1882-1901 by H. B. Adams.)

J. M. VINCENT

J. H. HOLLANDER W. W. WILLOUGHBY

Editors

VOLUME XX

COLONIAL AND ECONOMIC
HISTORY

BALTIMORE

JOHNS HOPKINS PRESS
1902

V1

COPYRIGHT, 1902, BY

THE JOHNS HOPKINS PRESS

(gafctmore

THE FRIBDENWALD COMPANY
BALTIMORE, MD., U. S. A.

TABLE OF CONTENTS

PAGE

I. Western Maryland in the Revolution. By B. C. Steiner 5
II-III. State Banks Since the Passage of the National Bank Act.

By G. E. Barnett 67

IV. Early History of Internal Improvement in Alabama. By

W. E. Martin 127

V-VI. Trust Companies in the United States. By George Cator 269
VII-VIII. The Maryland Constitution of 1851. By J. W. Harry . 387
IX-X. Political Activities of Philip Freneau. By S. E. Forman 473
XI-XII. Continental Opinion Regarding a Proposed Middle Euro-
pean Tariff-Union. By G. M. Fisk 575

The Maryland Constitution of 185

SERIES XX Nos. 7-8

JOHNS HOPKINS UNIVERSITY STUDIES

IN

HISTORICAL AND POLITICAL SCIENCE

(Edited 1882-1901 by H. B. Adams.)

J. M. VINCENT

J. H. HOLLANDER W. W. WILLOUGHBY

Editors

The Maryland Constitution of

1851

BY

JAMES WARNER HARRY

BALTIMORE
THE JOHNS HOPKINS PRESS

PUBLISHED MONTHLY

JULY-AUGUST, 1902

COPYRIGHT, 1903, BY

JOHNS HOPKINS PRESS

THE FR1EDENWALD COMPANY
BALTIMORE, MD.

PREFACE

This monograph was undertaken at the suggestion of the
late Professor H. B. Adams. Its purpose is to add one
chapter to the constitutional history of Maryland: the period
between the years of 1836 and 1851. The author is under
obligations to many friends for their interest and their help ;
especially to Associate Professor J. M. Vincent and to Dr.
Bernard C. Steiner of the Johns Hopkins University, who
have assisted with many useful suggestions and corrections.

J. W. H.

Johns Hopkins University, June, 1902.

CONTENTS

PAGE

INTRODUCTION 9

CHAPTER I

CONSTITUTIONAL REFORM.

General Sketch. — State Reform Convention of 1836. — Internal
Improvement and Taxation. — Object Sought by the Re-
formers.— Southern Counties Opposed to a Convention. —
State Reform Convention of 1845:— Reform Agitation
1847-9.— State Reform Convention 1849.— The Legisla-
ture of 1849. — The Referendum 12

CHAPTER II

THE CONVENTION.

Sectionalism. — Personnel of the Convention. — The Convention
and the Compromise Acts of 1850. — Basis of Representa-
tion.— Secession of Eastern from the Western Shore. —
Committee's Report on Representation. — An Elective ver-
sus an Appointive Judiciary. — Political Individuality of
Counties. — United States Senatorial Districts. — Free-
Negro Population. — Public-School System 33

CHAPTER III

THE CONSTITUTION.

Ratification of the Constitution. — Critical and Comparative
Study of the Constitution 68

APPENDIX.

Vote by Counties on Call of the Convention. — Vote by Coun-
ties on Adoption of Constitution 85

THE MARYLAND CONSTITUTION OF 1851

INTRODUCTION

The original constitution of Maryland, framed at an
early period of the Revolutionary War, remained for three-
quarters of a century the fundamental law of the State,
until it was superseded by the Constitution of 1851. At
the time of its formation the constitution was well adapted
to the wants and circumstances of the people. But the
rapid growth of population, and the great commercial and
industrial development of the State rendered necessary the
alteration of the constitution then framed, so as to con-
form to social and economic progress.

Many of the more objectionable features of the con-
stitution were amended or abolished. Among these
changes were the abolition of the property qualification for
the right of suffrage, and the repeal of the clause which
prevented those who were conscientiously scrupulous of
taking the oath from sitting in the General Assembly, or
serving as a witness in criminal cases where capital punish-
ment was involved. The electoral college for selecting the
members of the Senate had been abolished, and the people
had been given the right, with some restrictions, of electing
their governor.

All of these changes in the constitution had been effected
by successive acts of the General Assembly; but these
alterations, so far from producing the desired result, had
in many instances tended to destroy the harmony of the
original instrument, and instead of improving had served
to render it a " shapeless mass of unintelligible and con-
tradictory provisions," so that in many of its features it
bore little or no resemblance to the original constitution.

10 The Maryland Constitution of 1851. [388

The question of a state convention to amend the con-
stitution of Maryland had long been discussed in various
parts of the State. Among those who were in favor of
calling a convention to change the constitution there was
considerable difference of opinion as to the proper mode
of procedure. The 59th article of the constitution provided
for its own amendment by the identical action of two
successive legislatures, and the Declaration of Rights re-
ferring to that provision declared: "That this Declaration
of Rights, or form of government to be established by this
convention, or any part of either of them, ought not to be
altered, changed, or abolished by the legislature of this
State, but in such manner as this convention shall prescribe
and direct." *

The question was presented whether it was within the
constitutional power of the legislature of the State by a
simple resolution of that body, without first repealing the
59th article of the constitution, to call a convention to
alter or amend the constitution and frame a new one. This
very important question gave rise to considerable discus-
sion concerning the rights of the majority and of the
minority, and of the true intent and meaning of these
clauses of the old constitution.

Many leading men of the State considered that, without
the previous repeal of these articles of the constitution the
very call of a convention would be an open act of revolu-
tion, and its action null and void, even if sanctioned sub-
sequently by the popular approval. They considered that
the General Assembly had no authority either directly to
call a convention, or to take the vote of the people in
reference to its call.1 On the other hand it was argued by
the advocates of what was then called " conventional re-
form," that there was, underlying the whole system of state
government, a principle of acknowledged right in the peo-

1 Md. Dec. of Rights, 1776, sec. 42.

1 Report of Majority of Committee on Constitution. 1848.

389] Introduction. 11

pie to change their constitution in the manner in which a
majority of the people desired. They claimed that, as the
authority to change, alter, or abolish their form of govern-
ment was guaranteed to the people in the Declaration of
Rights,8 and that as a convention was neither prohibited
by the constitution, nor the mode of its organization pre-
scribed, the General Assembly could constitutionally pro-
vide for a convention.

The struggle between these two parties, representing
roughly the agricultural and the commercial interests of
the State, extended over a period of some twenty-five
years. The agitation finally resulted in a call of a consti-
tutional convention by the General Assembly, known as
the " Reform Convention of 1850."

It is the purpose of the writer to trace the growth of the
idea of " conventional reform " in the State. It includes
the history of the Convention of 1850 and the character of
the constitution which it gave to the people of the State
for their ratification, or rejection.

' Md. Const, of 1776, Dec. of Rights, sees, i, 2, 4.

CHAPTER I
CONSTITUTIONAL REFORM AGITATION

The period of prosperity which succeeded the War of
1812 was marked by great industrial and economic changes
throughout the American States. During this time the
spirit of democracy diffused itself throughout the nation
and produced many great and important changes in the
political, social, and economic life of the people. It was a
period characterized by the erection of schools, the exten-
sion of the right of suffrage, the construction of various
works of internal improvement, and wild speculation. With
this growth of democracy and the idea of popular sov-
ereignty, there were many changes made in the constitu-
tions of the several states to correspond with the social
and economic conditions of the people. These changes
were, for the most part, effected by constitutional conven-
tions, elected directly by the people.

Conventions of such a character, prior to 1850, had been
held in Massachusetts, New Hampshire, Connecticut, Rhode
Island, New York, New Jersey, Pennsylvania, Virginia,
South Carolina, Georgia, and Missouri. These assem-
blies were called for constitutional purposes by the respec-
tive state legislatures, under the general legislative power,
without the special authorization of their constitutions.1
During the year of 1850 conventions for the purpose of
amending or framing new constitutions were held in the
following states, New Hampshire, Vermont, Michigan,
Indiana, Ohio, Virginia, and Kentucky.1

With such precedents, a large portion of the people of

Jameson's Constitutional Convention, p. 209.
1 Ibid., p. 533 et seq.

391] Constitutional Reform Agitation. 13

Maryland demanded of their legislature the right of meet-
ing in a convention, elected by the people, for the purpose
of amending their constitution. The legislature, defending
itself behind the phraseology of the fifty-ninth article of
the constitution, which prescribed for its own amendment
by the identical action of two successive legislatures, re-
sisted for some twenty years every attempt of the friends of
constitutional reform to secure the calling of a convention.

Maryland, since the framing of the Constitution of 1776,
had become a government of the minority. Within this
period of seventy-five years, the economic and social con-
ditions of the people had undergone a complete change.
The city of Baltimore, at that time scarcely more than a
village, had expanded into a great commercial city, num-
bering a population of more than a hundred thousand, and
possessing one-third of the entire wealth of the State.3
The center of population had shifted from the Eastern
Shore and the southern counties to the northern and
western sections. With these changes there had been no
corresponding change effected in the constitution. The
smaller counties, though so unequal to the city of Bal-
timore and the larger counties in respect to population,
still had the majority of representatives in the legislature,
and foreseeing what demands would be made, if a conven-
tion was called for the purpose of changing the constitu-
tion by which their ascendency in the legislature was
secured, were opposed to every project of calling such a
body. In 1836, when the popular mind was agitated more,
perhaps, on this question of constitutional reform than in
any other period of the State's history, the legislature had
instructed a select committee to inquire into the expediency
of making it high treason for citizens to conspire against
the constitution of the State.4

The question of constitutional reform by means of a con-

3 U. S. Census, 1850.

* Niles Register, 5th series, vol. 52, p. 73.

14 The Maryland Constitution of 1851. [392

vention had long been agitated among the people of Mary-
land, and had been largely mixed with party movements
and purposes. From 1820 to the Civil War the State was
a close one in regard to the numerical strength of the
respective political parties. In general the Whigs were
stronger. As one party secured the control of the gov-
ernment, the other agitated the question of " conventional
reform," as it was alleged, " to ride into office."

In the movement of 1835-36 for constitutional reform,
which resulted in the radical amendments of the constitu-
tion of 1836, a portion of the people of the State were pre-
pared to effect the proposed amendments without the aid
of the legislature. Local conventions were held in several
counties of the State urging the necessity of constitutional
reform, and for the purpose of selecting delegates to a
state convention to be held in the city of Baltimore in the
spring of 1836. The purpose of this convention was to
bring pressure to bear on the legislature in order to obtain
the desired changes in the constitution. On the 6th of
June, 1836, the State Reform Convention, composed of
representatives from both political parties, assembled in
Baltimore City. In this convention Cecil, Harford, Balti-
more, Frederick, Montgomery, and Washington counties,
and Baltimore City were represented. The convention
adopted a set of resolutions recommending to the voters of
the State not to support any candidate for the state legis-
lature who did not pledge himself to introduce and sup-
port a bill in the legislature providing for taking the vote
of the people on the question of reforming the constitution
of the State. The convention resolved: "That if within
forty days after the commencement of its session the legis-
lature shall refuse or neglect to provide for ascertaining the
sense of the people of the State upon this important ques-
tion, and for calling a convention as prescribed in the
previous resolutions, the president of the convention is
hereby requested forthwith to convene this convention for
the adoption of such ulterior measures, as may then be

393] Constitutional Reform Agitation. 15

deemed expedient, just and proper, as may be best calcu-
lated, without the aid of the legislature, to ensure the
accomplishment of the desired results." c

The legislature, coerced by the state of public feeling,
and by the course pursued by the nineteen Democratic
senatorial electors, who refused to qualify and meet the
twenty-one Whig electors to elect the Senate," made many
of the desired changes in the constitution. The persistence
with which the nineteen " reform " electors pursued their
determination of electing a senate composed of a majority
in favor of reform, and the illegal and revolutionary man-
ner in which they endeavored to bring about a convention
for the purpose of forming a new constitution, produced
a reaction throughout the State in regard to the calling of
a convention. Public meetings were held in many of the
counties, and in the city of Baltimore, condemning the
course pursued by the " reform " electors as " disorganizing
and revolutionary." ' The changes made in the constitu-
tion by the " reform legislature " of 1836-37 served to
check for a few years the demand for a constitutional con-
vention.

The legislature in the effort to secure to Maryland the
growing trade of the West, and with the view of developing
the mineral resources of western Maryland, was induced to
make use of the capital and credit of the State in the aid
of various works of internal improvement. In the Decem-
ber session of the legislature of 1835-36, a measure was
introduced to grant heavy subsidies to the various pro-
jects of internal improvement in course of construction.
This measure was opposed in the legislature, and, with a
view of enabling the members to learn the sentiments of
their constituencies on the subject, was postponed until the
extra session held in May. *

" Scharfs History of Md., vol. iii, p. 189. See also Niles Register,
5th series, vol. 52, p. 124.

* Steiner's Electoral College, Amer. Hist. Association, Rep. 1895.
P- M2.

T McSherry's History of Maryland, p. 351.

16 The Maryland Constitution of 1851. [394

During this time a convention- was held in the city of
Baltimore at which delegates were present from the states
interested. The subject of internal improvement was
thoroughly discussed, and, in the language of Governor
Lowe, " promises were made which created a wild delusion
scarcely equalled by the dream of oriental imagination.
The people were told that instantaneous wealth and power
were within their grasp; that millions upon millions of
public debts might safely be incurred as the returns of the
investment would be certain and immediate; and that, for
all time thereafter Maryland would be free from even the
light burden which she had borne from the beginning;
while from her exhaustless treasury, perennial streams of
gold should flow bearing upon their bosom into the re-
motest section of the State the blessing of knowledge and
refinement." !

The result was that when the legislature met in extra
session in May, after a violent opposition, an appropriation
of eight millions of dollars was made, which together with
the appropriation already made, and those made two years
later, involved the State in a debt of over sixteen millions
of dollars.* To meet the interest on this debt and gradually
absorb the principal, excessive taxes were imposed upon
the people. Violent opposition to the taxes was manifested
in several places. In some of the counties anti-tax associa-
tions were formed declaring their inability to pay the tax.
In Harford county open resistance to the law was made.
When the collector of the tax attempted to sell some prop-
erty on which an execution was levied for the payment of
the state tax a mob chased him from the place of the sale,
threatening to kill any one who should venture to bid.10
This condition of affairs, and the popular excitement
caused by the financial embarrassment of the State brought

* Gov. Lowe's Inaugural Address, June 6, 1851.
' McSherry's History of Maryland, p. 368.
10 Niles Register, 5th ser., vol. 65, p. 354.

395] Constitutional Reform Agitation. 17

the subject of " conventional reform " again into promi-
nence.

As the evils of having a constitution so completely in
the power of the legislature became apparent in the ex-
travagant use of the State's credit, it was seen that there
must be some effectual check to prevent the legislature in
the future from involving the State in financial ruin. Each
succeeding election found the subject of constitutional re-
form a topic of increasing excitement and agitation, and
augmented the number of those who advocated the calling
of a constitutional convention. The subject came regularly
before the legislature, and the governors in their messages
to the General Assembly repeatedly called the attention of
that body to the necessity of calling .a convention.

The most important alterations in the constitution con-
templated were : a change in the system of representation in
the House of Delegates; limitation upon the power of the
General Assembly to contract debts, or pledge the public
credit; reduction in governmental expenses; the right to
elect all local county officers; a reform of the judicial sys-
tem, and especially a constitutional convention, elected
directly by the people for the express purpose of framing a
new constitution.

The rapid growth of population in the northern and
western sections of the State, especially in Baltimore City,
rendered necessary the reapportioning of representatives
in the General Assembly. The smaller counties of south-
ern Maryland, and of the Eastern Shore, fearing the pre-
ponderance of Baltimore City's influence in the legislature,
fixed an arbitrary and unjust limitation upon her representa-
tion. Although with a population including considerably
over one-fourth of the entire population of the State, the
representation of Baltimore City embraced only about one-
sixteenth of the total representation in the House of Dele-
gates.

Representation in Maryland from colonial days down to
1836 had been based upon territory. In the year 1659 the
28

18 The Maryland Constitution of 1851. [390

legislature organized into two separate branches, and the
representation in the " Lower House " was made equal
among the counties. In 1692 the legislature by law fixed
the representation from each county at four. This equality
of representation among the counties remained unaltered
until the Revolutionary War."

In 1776, when the constitutional convention assembled
to form a constitution for the State just emerging from
colonial dependency, the system of equal representation of
the counties was engrafted upon the constitution, and each
county was given four delegates, and the town of Baltimore
and city of Annapolis two each. In 1824 a constitutional
amendment was passed by the legislature which gave Bal-
timore City four delegates, so as to place her representa-
tion on an equality with the counties; but it failed to be
ratified by the succeeding legislature as the constitution
required." A similar amendment was made in 1835, but
failed likewise to be ratified.1* By the amendment of the
constitution in 1836, Baltimore City, Baltimore and Fred-
erick counties were each given five representatives. The
counties of Cecil, Kent, Queen Anne's, Caroline, Talbot,
St. Mary's, Charles, Calvert and Allegany three; and the
remaining counties four each.

After 1840, representation in the House of Delegates
from the several counties was to be established on a given
ratio, having federal numbers as its basis; but Baltimore
City was limited to equal representation with that of the
largest county, and no county was to have less than three
representatives."

In the judicial department of the State a complete reor-
ganization was urged by the reformers. The appointing of
the judges by the governor, and the tenure of office for
good behavior, which was found to be in practice equal to

11 McMahon's History of Maryland, vol. i, p. 465.

"Act 1824, ch. 115.

18 Act 1835, ch. 98.

"Act 1836, ch. 197, sec. 9.

397] Constitutional Reform Agitation. 19

a life tenure, were considered to be, as the phrase went,
" contrary to the spirit of American institutions." In 1842
there were in commission twenty-one common law judges
and a chancellor at an expense for their salaries of $36,000
per annum. Governor Thomas in his message to the
General Assembly in the same year declared that there was
not a state in the whole Union, notwithstanding the fact
that the population of several of the states was four times
as great as that of Maryland, where the number of the law
judges, and the amount of their salaries, were not less
than those of Maryland. " Besides these objections," Gov-
ernor Thomas continues, " another is that there are no
effectual means provided for in the constitution to get rid
of judges once commissioned as promptly as public interest
may demand."

In 1844 the House of Delegates appointed a committee
to take into consideration the advisability of reducing the
expenses of the judicial system of the State, and of chang-
ing the tenure of office. In their report they showed that
Maryland in 1840 paid for her judiciary the sum of $41,500"

"The State paid in 1840 in salaries the sum of $36,100, as follows:

Chancellor $ 3,400

Twelve associate judges of county courts 16.800

Five chief judges " " 11,000

Chief judge of Court of Appeals 2,500

Chief judge of Baltimore City Criminal Court 2,400

$36,100

In addition to the salaries thus paid from the treas-
ury, the two associate judges of Baltimore City

Court were paid by the city ($1500 each) 3,000

The judges of the sixth district (including Baltimore
and Harford counties) received in addition to their
salaries, in equal shares the amount of certain
taxes on proceedings in the court, amounting to
($800 each) 2,400

$5,400

Making a total of $4i,5oo

See Report of Committee on Grievances and Courts of Justice,
House Journal, March 5, 1844.

20 The Maryland Constitution of 1851. [398

(excluding the salaries of the clerks, etc., etc.), while Massa-
chusetts, with a population more than twice as great, and
almost three times the extent of territory, was paying but
$25,750. The committee recommended the reduction of
the number of judges ; but not of their salaries.

In addition to the lack of authority claimed by the legis-
lature, the fear of agitating the question of slavery in the
State greatly increased the difficulties of securing legislative
sanction for the call of a constitutional convention. That
portion of the State which was deeply interested in slavery,
jealously guarded that institution from both internal and
external interference. It was feared that, if a convention
assembled, with full power of framing a new constitution,
the relation between master and slave might be changed.
By an amendment of 1836, a provision was engrafted upon
the constitution, declaring that the relation of master and
slave in the State should not be abolished unless a bill for
that purpose should pass by a unanimous vote of both
branches of the General Assembly, be published three
months before a new election, and be unanimously con-
firmed by both branches of the succeeding General As-
sembly after a new election. In event of slavery being
abolished within the State, the constitution required full
compensation to be made to the master for the value of his
slaves.16

The dissension between the North and South arising over
the settlement of the slavery question in the new territories
acquired by the Mexican War, and the position of Mary-
land as a border State, rendered the southern counties
more determined than ever to place around the institution
of slavery those safeguards which should render it more
secure from both internal and external violence. They
considered that security could best be assured when they
had a controlling voice in the government of the State.
This predominant influence in the General Assembly they

"Act 1836, ch. 197, sec. 26.

399] Constitutional Reform Agitation. 21

could no longer hope to retain if a convention, whose rep-
resentation was based upon popular numbers, as was urged
by Baltimore City, and the larger counties, assembled to
frame a new constitution.

The distribution of slave property in Maryland was very
unequal. The number of slaves was rapidly decreasing in
the northern and western sections of the State, especially
in those counties bordering on the free State of Penn-
sylvania. The proximity to a free State, and the conse-
quent facilities for escape, rendered slavery almost imprac-
ticable, and slave property almost worthless. In southern
Maryland, on the other hand, where agriculture was exten-
sively carried on, and slave labor productive, the num-
ber of slaves was constantly increasing.

The southern planters had the greater part of their cap-
ital invested in this kind of property. This, interest which
they guarded with so much jealousy, and which formed so
large a part of their wealth, might be destroyed and the
wealth of the other part of the State scarcely feel the shock.
These considerations led the people of the southern coun-
ties to believe it would be dangerous to them and to their
interest to give the legislative authority into the hands of
the people of the north and west, especially to those of
Baltimore City, who were suspected of holding anti-slavery
sentiments. This group considered that they were not con-
cerned in sustaining the rights of the slave-owners. Though
there were no public manifestations of a wish for the im-
mediate abolition of slavery in the State, the tendency of
the times and the action taken by the northern abolition-
ists were well calculated to increase the apprehensions of
the slave-owners. This fear of agitating the question of
slavery in the State was one of the principal causes for the
legislature's resistance of the demands of the large majority
of the people for a constitutional convention.

The financial embarrassment of the State, due to the
failure of realizing the large returns which had been so
confidently predicted from the works of internal improve-

22 The Maryland Constitution of 1851. [400

ment, increased the agitation for " retrenchment and re-
form." This agitation arose paramount to all other issues.
After the Stamp Tax law of 1844 was put in execution,
which was the most objectionable among the many laws
passed for the purpose of raising a revenue, and which was
referred to as the " British Stamp Act," " the demands for
a convention became general over the State.

On the 2/th of August, 1845, a state reform convention,
composed of delegates from several counties, was held in
Baltimore City. The convention organized by the selec-
tion of Colonel Anthony Kimmel, of Frederick county,
president ; and George W. Wilson, secretary. A committee
of five was appointed for the purpose of drafting a me-
morial to the legislature in behalf of the convention in
favor of " conventional reform." It was decided to estab-
lish a permanent central reform committee, consisting of
ten members from the city of Baltimore, and five from
each county, for the purpose of " securing the great object
of retrenchment and reform." The convention adopted a
set of resolutions without a dissenting voice. Among
which were:

"Rcsoh'cd, That it be recommended to all the election
districts in the State to organize reform associations, and
to appoint corresponding committees, whose duty it shall
be to report to the central committee all information that
they may collect with regard to the progress of reform
principles, and suggest such measures as may be deemed
advisable to advance the cause in their several districts."

"Resolved, That it be recommended to the people
throughout the State to give their votes to no candidate
for either branch of the legislature who will not pledge
himself to vote for the call of a convention; the abolition
of all useless offices, and the retrenchment of all unneces-
sary expenses."

" Resolved, That we consider any apprehension that, in

" Scharf's History of Maryland, vol. iii, p. 212.

401 J Constitutional Reform Agitation. 23

a convention assembled to form a new constitution to be
submitted to the people for ratification, there is danger
that the slavery question might be agitated to the preju-
dice of the quiet and happiness of the public, as altogether
visionary; and as implying injurious and unfounded doubts
of the good sense and sound principles of the people; that
we believe the views of all classes of our citizens on the
subject are sound, and that the State is more dishonored
by the intimation of doubts with regard to it, than she
could be by any agitation of the question that would be
likely to take place in a convention." ]

When the legislature assembled in December, 1845, a
bill was introduced in the House which provided for tak-
ing the vote of the people of the State upon the question
of calling a constitutional convention. Petitions were re-
ceived from the several reform organizations of Maryland,
praying for the passage of the bill. The majority of the
committee to whom the petition and bill were referred,
reported that under the present form of government the
legislature had no power to call a convention, and that
whatever amendments were necessary, could be made by
the legislature in the manner prescribed by the constitu-
tion. The minority of the same committee reported that
under the Declaration of Rights, and the constitution oi
the State, the legislature did have the power, and it was its
duty to do so at the present session. After a violent de-
bate between the members from the smaller counties on
one side, and the representatives from the larger counties
and from the city of Baltimore on the other, the bill was
lost by a tie vote."

When a new legislature was elected in 1847, tne sub-
ject was again introduced in the House. The committee
in their report deplored the idea of agitating a question of
such moment when the State was involved in financial

18 Niles Register, 5th sen, vol. 68, p. 405.
'* House Journal, December session, 1845.

24 The Maryland Constitution of 1851. [402

embarrassment of the most serious character, and re-
quested that the whole discussion might be postponed until
its agitation could exercise no injurious influence upon
the credit of the State. That " conventional reform "
would be a violation of the constitution, subversive of the
interest of the smaller counties; and an abridgment to
the rights of the minority."

In the gubernatorial canvass of 1847, tne Democratic
party nominated Philip Francis Thomas of Talbot county
for governor. Mr. Thomas's opinion on the question of
a constitutional convention was so well known that he was
presented as the standard bearer of the " reform party,"
whose motto was " reform, retrenchment, and conven-
tion." 3 The leaders of the reform movement entreated
the people to lay aside all party prejudices and act inde-
pendently of party affiliations in order to secure Mr. Thom-
as's election. They urged the counties to select their
tickets for the General Assembly with direct reference to
this question of " conventional reform," which had become
paramount to all other questions. The Whigs, as a party
opposed to the calling of a convention, nominated Mr.
William Goldsborough for governor in opposition to Mr.
Thomas. Active canvass of the State was made by both
parties. Excitement ran high, and invectives were used
to a considerable extent on both sides.

The Whigs characterized their opponents as " syco-
phants " and " parasites/' " who pander to the prejudice
and interest of the larger counties in hope of lucre."3
The Democrats returned the abuses with equally oppro-
brious terms. Mr. Thomas was elected governor by a ma-
jority of 709 votes; while the Whigs had the majority in
both branches of the General Assembly. The friends of
" conventional reform " were again destined to disappoint-
ment The legislature refused to pass an act authorizing

20 Report of Majority on Constitution, Dec. session, 1847.

M Easton Star, July 27, 1847. a Easton Star, October 12, 1847.

403] Constitutional Reform Agitation. 25-

a vote of the people to be taken upon the subject of a con-
stitutional convention, claiming lack of authority and
power to enable them to do so.

These repeated refusals of the legislature to call a con-
vention; or to take the vote of the people in reference to its
call, made the reform party more determined than ever to
secure a convention with, or without, the aid of the legis-
lature. Accordingly the leaders of the reform party
throughout the State began early in the spring of 1849 a
more violent agitation than ever on this all-absorbing
question of " conventional reform." Local conventions
were held in several counties, and delegates were selected
to meet in a state reform convention to be held in the city
of Baltimore. One of the first of these county conventions
was held in Westminster, on the 9th of June. In this gath-
ering addresses were made by several prominent men of
the county, earnestly recommending prompt and judicious
action with a view to a thorough reform in the constitution
of the State by a convention. Among the defects of the
constitution comprised in the resolutions adopted were:
its liability to be changed at the caprice of the legislature;
the inequality of representation in the Senate; the life ten-
ure of the judiciary; the lack of constitutional check upon
the legislature in the expenditures of the public money,
and as a grievance, that the legislature had failed to meet
the wishes of the people in granting constitutional reform.2*

The Worcester county reform convention met at Snow
Hill on the loth of July. The complaints made against
the government of the State in the convention were, ex-
cessive taxes, both direct and indirect, and no constitu-
tional check placed upon the legislature in the expenditure
of public money. The convention selected ten delegates
to attend the state reform convention to be held in Balti-
more city.*4 Similar conventions were held in several

M Westminster Democrat, June 11, 1849.
24 Baltimore Sun, July 16, 1849.

26 The Maryland Constitution of 1851. [404

counties. Resolutions were adopted with the view of ob-
taining constitutional reform, and delegates were selected
for the state reform convention.

In some of the county conventions there was a division
of opinion as to whether the reforms in the constitution
should be made by a convention; or by the legislature of
the State. Generally the southern counties and those of
the Eastern Shore were opposed to the convention. They
considered a convention would be dangerous to their rights
and privileges guaranteed in the constitution. The Demo-
cratic candidates for the legislature in Frederick county
issued a card pledging themselves not only to vote for,
but to use every honorable means to secure the passage of
a bill in the legislature, providing for the call of a con-
vention. They declared that " we hold that the 59th ar-
ticle of the constitution is not, and was not intended to be
other than a restriction upon the legislature; and that the
people cannot be curtailed of their sovereignty by consti-
tutional provisions, nor by legislative enactments."1

The delegates from the several county conventions,
composing the state reform convention, assembled in Bal-
timore City, July 25, 1849. Represented were Washing-
ton, Frederick, Carroll, Baltimore, Harford, Caroline, Wor-
cester, Somerset, Montgomery, Baltimore City and How-
ard District* The convention was organized by selecting
Col. John Pickell of Baltimore City president, and Beale
H. Richardson, Esq., secretary. Two days were consumed
in discussing the proposed reforms, and the methods most
likely to bring the legislature to provide for a constitu-
tional convention. On the second day the following pre-
amble and resolutions were unanimously adopted:

" Wlicreas, The people of Maryland, through their repre-
sentatives from many of the counties, districts, and city of
Baltimore, have called this convention together to declare

35 Baltimore Sun, September 8, 1849.
2e Baltimore American, July 26, 1849.

405] Constitutional Reform Agitation. 27

and express for them their views and determinations in
relation to the reform of their constitution, and in primary
meetings have appealed to all men in Maryland, without
distinction of party to rally now upon this important and
vital question; and as in most, if not in all of the States
of this Union, the people by a convention of delegates se-
lected for their patriotism and wisdom, have assembled,
and after calm and mature deliberation amended, remod-
eled, or reformed their old constitutions (however admir-
able and appropriate at the period of their formation), and
adapted them to the changed conditions, growing power,
and the irrepressible progress of more enlarged spirit of
improvement and the fuller lights which practice and ex-
perience have bestowed; and as it is desirable that a work
of such importance, and so allied with the feelings and in-
terests of the people themselves, should be commenced,
pursued and completed in a spirit of harmony and union,
and that all minor questions, whether of Federal or State
policy should be omitted, to attain for the people the great
blessings of reform of their constitution, which they alone
are competent to make, most beneficially to themselves, by
the means of a convention, which shall be composed of
delegates directly elected by, and immediately responsible
to the people of this State."

" Resolved, That this convention, constituted as it is of
delegates appointed from the counties, districts and city of
Baltimore here represented, do, in behalf of the people of
Maryland whom they represent, declare that it is their
wish as it is their fixed determination to have a full and
thorough reform of the constitution of Maryland, by a
convention, so far as their votes and efforts can attain this
desired object."

" Resolved, That the legislature possesses the power, and
should call a convention at their next session, in obedience
to the manifest and expressed will and wishes of the people,
to reform the constitution of the State."

" Resolved, That in evidence of our sincerity in the prem-

28 The Maryland Constitution of 1851. [406

ises, we the members of this convention, mutually pledge
ourselves, one to the other, that we will cast our vote for
no candidate for a seat in either branch of the legislature
of Maryland, who is not fully committed and pledged to
vote for a bill providing for an immediate call of a con-
vention to revise the present constitution; and that we
commend this course to the friends of conventional reform
of all political parties throughout the State. That this
convention also recommends the formation of reform com-
mittees and clubs in every county, district and city jn the
State, for the purpose of urging on the great work of con-
ventional reform." 5

These recommendations were vigorously carried out by
the local reform organizations of the several counties of
the State, and of the city of Baltimore, in order to secure
the election of delegates favorable to " conventional re-
form." The Democratic party of the State was almost
unanimously in favor of a convention; while the Whigs in
the different sections were divided in regard to it. The
Whigs of Carroll county held a convention at Westminster
on the i8th of August, and took decided grounds for " con-
ventional reform." They declared that the legislature had
the power to call a convention of the people, and pledged
themselves to support no candidate unless he announced
himself in favor of the convention.2" The Whig voters of
Baltimore City in a convention of delegates appointed from
the different wards of the city adopted similar resolutions.*
The Whigs of the southern counties and of the Eastern
Shore were opposed to a convention. The Rockville, Md.,
Journal, speaking of the convention held there for the
purpose of selecting delegates to the state reform con-
vention in Baltimore City, stated, that " No Whigs at-
tended the meeting, and so far as we know, there is not
a conventional Whig reformer in the district."1

27 Baltimore American, July 27. 1849.

28 Baltimore Sun, August 24, 1849.

29 Baltimore American, August 31, 1849.

80 Quoted from the Baltimore Sun, July 31, 1849.

407] Constitutional Reform Agitation. 29

The result of the election of 1849, gave the Whigs a
majority of twelve in the House, and nine in the Senate.
Governor Thomas in his message to the General Assembly,
January i, 1850, plainly told that body that the large ma-
jority of the people of the State were in favor of a conven-
tion, and unless the wishes of the people in that behalf were
gratified the sanction of the legislature would not much
longer be invoked.

The subject of the constitution was' one of the first to be
considered by the House. A select committee was ap-
pointed to inquire into the expediency of calling a conven-
tion, and to provide a bill to carry it into effect. Peti-
tions were received from various parts of the State in favor
of a convention. On the I5th of January, Mr. Biser of
Frederick county, who was known in the Convention of
1850 as the " Father of reform," made a majority report
favorable to a convention. The report was signed by only
three of the seven members of the committee. The com-
mittee admitted that the constitution, as it then stood pro-
vided that the legislature had th°. power to change the
constitution of the State; but denied that that power was
exclusively in the hands of the legislature. They asserted
that the majority of the people also had the power to
amend or abolish their constitution when they so desired.
The committee showed that by the report of a similar com-
mittee in 1847, there were placed upon the records of the
legislature, views and arguments, which, if historically or
legally correct, would leave no other remedy to the ma-
jority of the people, should they demand a convention, than
a revolution.

The report claimed that the legislature had a precedent
in taking the vote of the people upon the question of in-
voking a convention by the act of 1846, which submitted
to the vote of the people of the State the proposed amend-
ment of the constitution, requiring in the future biennial
instead of annual sessions of the legislature, and which was
sustained by a majority of the voters. The committee

30 The Maryland Constitution of 1851. [408

considered that there was ample, reason for asserting that
the vote could be constitutionally taken upon the propriety
of holding a convention, and reported a bill to that effect,
with provisions to put it in execution."

On the i6th of January, Mr. Causin of Anne Arundel
county, from the same committee submitted a minority re-
port, denying the constitutional authority to submit to the
vote of the people a proposition relative to a call of a con-
vention. The report was also accompanied by a bill, which
provided for the repeal of the 42nd article of the Declara-
tion of Rights," and the 59th article of the constitution."
If the act for the repeal of these articles of the constitution
should be confirmed by the succeeding legislature, then
it would be lawful for the legislature to call a convention
of the people, to reform or make a new constitution.*4

To secure the sanction of the legislature for a conven-
tion, it was seen that a compromise must be made between
the different sections of the State. Baltimore City and
the larger counties maintained that representation in the
convention should be apportioned among the counties and
city of Baltimore according to population. The Eastern
Shore and the smaller counties considered that all neces-
sary changes in the constitution could be made by the
legislature, and that their rights and interest would be put
to hazard by a convention, having population as the basis
of representation. They required, if such a convention
should be called, a vote of two-thirds of the convention to
pass any constitutional provision touching the interest of
the people of the Eastern Shore," as guaranteed to them
by the constitution.

The radical reformers were unwilling to consent to the
delay and uncertainty of the succeeding legislature con-
firming the amendments proposed by the report of the mi-

S1 Report of Majority on Constitution, January 15, 1850.

M See p. 10. * Ibid.

84 Report of Minority on Constitution, January 26, 1850.

95 House Journal, January 7, 1850.

409 J Constitutional Reform Agitation. 31

nority of the committee. They demanded the immediate
enactment of a law authorizing the vote of the people to
be taken upon the question of a convention. After con-
siderable opposition, the bill reported by the majority of
the committee, but slightly amended, was passed by the
House by a vote of forty-three to thirty-five; and the
Senate without amendment or debate, except to a question
of postponement, passed the bill by a vote of eleven to
seven. The representatives from the following counties
voted unanimously to submit the bill to popular vote: Balti-
more, Harford, Cecil, Talbot, Frederick, Washington, Al-
legany, Carroll and Baltimore City. The counties of St.
Mary's, Calvert, Charles, Dorchester, Queen Anne's, Wor-
cester and Kent voted unanimously against the bill. The
remaining counties were divided in their vote.88 The Bal-
timore Sun of May 7, 1850, in an editorial states " That it
was not until the popular sentiment turned very decidedly
towards a convention independent of the legislature, that
the convention was granted; and so decisively had this
purpose taken hold of the popular mind that there was
some disappointment when the Senate passed the bill."

The convention was to have complete power of framing
a new constitution, except that it was prohibited from
changing the relation of master and slave as then estab-
lished and sanctioned by the constitution. The act also
provided that the new constitution should be submitted to
the people for their ratification or rejection on the first
Wednesday in June, 1851. The representation in the con-
vention to be the same as each county and the city of Bal-
timore then had in both branches of the legislature."

The reform party did not rest with their success in the
legislature, but endeavored to secure the adoption of the
measure by the people. In Baltimore City a large meeting
was held without distinction of party on the i8th of April.
Addresses were made by several prominent reformers,

w House Journal, February 16, 1850. 37 Act 1849, ch. 346.

32 The Maryland Constitution of 1851. [410

urging the people to cast their ballots for the convention.
The banners displayed bore in large letters the motto:
4i A long pull, a short pull, and a pull together."*8 Similar
meetings Avere held in several parts of the State.

The vote in regard to a convention was taken on the 8th
of May. The ballots were marked thus — " for a conven-
tion," and "against a convention." A majority of 18,833
votes were cast in the State for a convention. In Balti-
more City the aggregate vote cast was very small, only
some 8500 voters went to the polls, and of these only 376
voted against the convention. The following counties
voted against the proposition: Prince George's, Dorches-
ter, Charles and St. Mary's. Somerset county voted for a
convention by a majority of six votes." The election for
delegates was held on the 4th of September, and on the 4th
of Xovember, 1850, the convention assembled in Annapolis.

The fact that the articles of the constitution which gave
to the legislature the power to propose and make amend-
ments were not repealed, gives the convention a revolu-
tionary or extra-constitutional character.

M Baltimore American, April 19, 1850. ** See Appendix, p. 85.

CHAPTER II
THE CONVENTION

The year 1850 was one of profound excitement through-
out the United States. The slavery question was now
agitating the country from one end to the other. The
dispute about freedom in the new territories acquired by
the Mexican War aroused sectional animosities and seces-
sion threatened. The article of the constitution and the
laws of Congress providing for the recapture of fugitive
slaves had been repeatedly disregarded, or set at defiance.

The government of the State of Maryland at that time
was in the hands of the Whigs, who represented the agri-
cultural and conservative element of the people. Although
the Whigs were in the minority in respect to popular num-
bers, they were enabled, by the system of representation
recognized by the constitution of the State, to have a ma-
jority in the General Assembly.

Representing the agricultural interest of the State, the
Whigs, as a political party, were opposed to a constitu-
tional convention. They were reluctant to surrender any
portion of their relative influence in the state legislature
to the growing population of the northern and western
sections of the State, especially to the rapidly increasing
population of Baltimore City. Self-protection, they con-
sidered, demanded the retention of the state government
in their own hands.

It was not until revolution threatened the State that the
counties of southern Maryland and of the Eastern Shore,
through their representatives in the General Assembly,
consented to submit to the voters of the State a proposi-
tion relative to a call of a constitutional convention.
29

34 The Maryland Constitution of 1851. [412

The peculiar geographical features of Maryland are such
that the State is divided into sections whose interests have
always been regarded as opposed to each other. Sectional
jealousy was particularly strong before the Civil War.
The Eastern Shore and southern Maryland had some
interests in common; both were agricultural districts, and
both were deeply interested in the maintenance of the in-
stitution of slavery within the State. The number of
slaves was increasing in the southern counties of both the
Eastern and Western Shore. The number of slaves in
three of the counties: Prince George's, Calvert and
Charles, exceeded the number of whites.1

On the Western Shore the city of Baltimore was clam-
oring for greater political power. The city's representa-
tion in the General Assembly of the State was limited to
equal representation with that of the largest county,
though with a population more than four times as great.
The rapid growth of population of Baltimore City, and
her great commercial expansion; while producing a sense
of pride among the inhabitants of the agricultural districts,
filled them with alarm for their own political influence in
the government of the State, and thereby the control over
the institution of slavery. This alarm was greatly in-
creased by the relative decrease of slave population in the
northern and western sections of the State.

The commercial interest of Baltimore City was not
deeply concerned in the maintenance of slavery in the
State, because the employment of slaves in commercial
pursuits was not considered to be profitable.

The sectional jealousy of the two Shores was greatly in-
creased by the system of internal improvement, which was
financially aided by the State. For advancing its commer-
cial interest, the small State of Maryland had become in-
debted to the extent of over sixteen millions of dollars.
The citizens of Baltimore City were the real promoters

1 U. S. Census, 1850.

413] The Convention. 35

of the plan of state aid to canals and railroads; in this
they were supported by the people of western Maryland
who were interested in finding a market for their agricul-
tural and mineral products.

The failure of the works of internal improvement to pay
interest on the bonds guaranteed and issued by the State,
compelled the government to resort to heavy taxation.
The people of the Eastern Shore bitterly complained of
being heavily taxed for the benefit of the Western Shore
and Baltimore City. Intersected by rivers and creeks, the
Eastern Shore did not require works of internal improve-
ment to develop her resources. The people of the East-
ern Shore regarded the Chesapeake and Ohio canal, and
the Baltimore and Ohio railroad as injurious rather than
beneficial to her agricultural interest. They brought into
competition with her products the products of the great
West.

It was amid these political and economic conflicts of in-
terest within the State, and amid the agitation concerning
slavery in the whole country, that the Maryland consti-
tutional convention assembled in Annapolis on the 4th of
November, 1850.

In the convention were many of the leading men of the
State; men of wide political knowledge and experience.
Among the more prominent members and those who took
a leading part in the debates were ex-Governors Samuel
Sprigg and William Grason. Hon. T. H. Hicks, after-
ward war governor of Maryland, through whose efforts
Maryland was prevented from seceding from the Union,
United States senators Edward Lloyd, of Talbot county,
William D. Merrick, of Charles county, and David Stew-
art of Baltimore City. Others who were prominent in the
convention were Hon. John W. Crisfield, of Somerset
county, a representative in the Thirtieth and the Thirty-
seventh Congress of the United States, and one of the
ablest lawyers of the State. Alexander Randall, of Anne
Arundel county, a representative in the Twenty-seventh

36 The Maryland Constitution of 1851. [Ill

Congress, Charles J. M. Gwinn, df Baltimore City, a prom-
inent lawyer of the State, and several others of distin-
guished ability. The total number of members of the con-
vention was one hundred and three. Politically there
were fifty-five Whigs and forty-eight Democrats.

The convention was temporarily organized by the call-
ing of Col. Benjamin C. Howard, of Baltimore county, to
the chair, and James L. Ridgely, of the same county, was
appointed secretary.

Elements of discord abounded in the convention. Party
feeling was very strong, and perhaps to this cause may
be attributed in a great measure the difficulties and dif-
ferences which were encountered in the progress of the
session. An entire week was consumed before the con-
vention was able permanently to organize, owing to polit-
ical division and sectional jealousy.

The candidates for the presidency of the convention were
Hon. John G. Chapman, of Charles county, Whig; Col.
Benjamin C. Howard, Democrat; and William C. John-
son, of Frederick county, independent Whig. After eight
days of various attempts to elect a president, during which
time caucuses were held by both parties to instruct their
members as to what compromises would be accepted and
what required, Mr. Chapman, the Whig candidate was
chosen permanent president. He was a conservative re-
former, and had voted against the call of the convention.

On taking the chair Mr. Chapman said that venerating
as he always had done, the characters of those wise and
patriotic men, who in 1776 formed the first republican con-
stitution of the State, he had witnessed with a distrust,
which he never desired to conceal, the efforts that had
been made to change its provisions.* George G. Brewer,
of Annapolis, was made secretary to the convention.

Nineteen standing committees were appointed by the
president to prepare and bring business before the con-

* Baltimore American, November 16, 1850.

415] The Convention. 37

vention. The most important committee was considered
to be that on representation. Other committees to which
great importance was attached were those on the legis-
lative department; the committee on the judiciary, and the
committee on future amendments. The president of the
convention in appointing the various committees had
strict regard to the different sections of the State.

Early in its session the convention had appointed a se-
lect committee to draw up resolutions in reference to the
recent compromise measures adopted by the United States
Congress. On the loth of December, 1850, the select
committee reported a series of resolutions, which were
unanimously adopted.

These resolutions declared that tRe constitution of the
United States had accomplished all the objects — civil and
political — which its most sanguine framers and friends an-
ticipated. That a proper appreciation of the blessings
which that instrument had brought to the country would
lead every state in the Union to adopt all measures nec-
essary to give complete effect to all provisions of the
constitution, or laws of Congress intended for the protec-
tion of any portion of the Union.

They declared that the several acts of Congress, namely:
those relating to the admission of California as a free
state; to the territorial governments of Utah and New
Mexico; to the prohibition of slave trade in the District
of Columbia, and to the reclamation of fugitives from
labor, did not, to the extent they desired, meet the just
demands of the South. But in order to heal the public agi-
tation and perpetuate the Union, the acts of compromise
received their acquiescence. They declared that of the
series of laws passed by Congress that intended to insure
the restoration of fugitives from labor was the only one
professing to protect the peculiar rights and institution of
the Southern states from the " mischievous hostility of a
wicked fanaticism " in the North. The fugitive slave law
was but a " tardy and meagre measure of compliance with

38 The Maryland Constitution of 1851. [416

the clear, explicit and imperative injunction of the con-
stitution." The provisions of that law could not be vio-
lated or deliberately evaded without leading to a dissolu-
tion of the Union." '

Copies of the above resolutions were sent to the execu-
tives of several states. Governor Collier of Alabama in
acknowledging1 the receipt of the resolutions said that
Maryland had spoken frankly and patriotically, and that
the South would be true to the Union so long as the " sa-
cred charter of our rights was respected and honored, and
the general government manifested a willingness and
ability to enforce the law made for the protection of the
South." *

Similar resolutions were adopted by the citizens of
Frederick county. These resolutions declared emphatic-
ally that the fate of the Union depended upon the future
conduct of the North.8 The convention expressed also its
great admiration for the eminent statesmen " who, rising
above the influence of party and sectional considerations,
periled their well-earned reputations for the enduring wel-
fare of their country."

On the 25th of March, 1851, the convention entertained
at dinner the Hon. Daniel Webster. Mr. Webster took a
leading part in defense of the compromise measures in the
United States Senate,' and was honored by the people of
Maryland as "the ablest defender of the Union." Amid
speech-making and toast drinking the attachment and loy-
alty of Maryland to the Union was proclaimed/

The subject of apportioning representation in the Gen-
eral Assembly among the several counties and Baltimore

3 See Resolutions, Baltimore American, December 12, 1850.

4 Debates of Convention, vol. i, p. 384.

5 See Baltimore American, November 18, 1850.

9 See Webster's Speech, 7th March, 1850; Webster's Works, vol.
5, P. 324-

7 See Pamphlet, " Dinner given to Hon. Daniel Webster by
the Md. Reform Convention, 1850."

417] The Convention. 39

City was one of the first to be considered by the conven-
tion, and one of the last to be disposed of. To many this
took precedence over all issues before the convention. It
was the most difficult and embarrassing question upon
which that assembly was called to act. The issue was
between the smaller counties of southern Maryland and
of the Eastern Shore on the one hand, and Baltimore City
and the larger counties which claimed representation ac-
cording to population on the other. The smaller counties
were generally willing to give representation according to
population to the counties, but desired to restrict the rep-
resentation of Baltimore City to equal representation with
that of the largest county, or giving the city the same rep-
resentation as was agreed to in 1836. The city of Balti-
more and the counties which were prominent in wealth
and population protested against the injustice of the
smaller counties controlling the state legislature. The
smaller counties having a majority in the legislature under
the old constitution insisted that they would never sur-
render the rights and privileges which that constitution
conferred upon them. Under the constitution of 1776 the
people of the Eastern Shore enjoyed certain privileges,
among which was that no constitutional amendment could
be made touching the interest of the Eastern Shore with-
out a two-thirds vote of all the members of two successive
General Assemblies, requiring only a majority vote for the
rest of the State.'

This provision was the result of a compromise between
the Eastern and Western Shores at the time of the forma-
tion of the original constitution. The smaller counties of
the Eastern Shore and southern Maryland having the ma-
jority in the legislature practically held control over the
institution of slavery and the public treasury. This power
they were determined not to yield to the larger counties
and especially to the people of Baltimore City.

8 Constitution 1776, art. 59.

40 The Maryland Constitution of 1851. [418

Under these circumstances it was seen that a comprom-
ise was necessary between the contending parties and their
interests to secure a new constitution. The act itself, by
which the convention was called, was a virtual acknowl-
edgment that the constitution to be framed should be a
work of compromise on the subject of representation,
since it fixed the representation in the convention. Each
county and Baltimore City was given the same number of
representatives as they then had in both branches of the
General Assembly.

The majority of the members were hampered in making
compromises by the instructions given by their constitu-
encies. These instructions were generally of such a char-
acter as to give to certain parts of the State some superior
advantage, or prevent a reduction of their relative in-
fluence in the future legislatures.

Closely connected with the subject of representation was
that of slavery, the only subject upon which the conven-
tion was unanimously agreed. Mr. Presstman, of Balti-
more City, had anticipated the representatives of the coun-
ties more particularly interested in slavery, and submitted
a proposition providing that the legislature should have
no power to abolish the relation between master and slave
as it then existed in the State,* and that the committee on
the legislative department be instructed to report a bill
to that effect.10 This was regarded as a decided advance in
the way of conciliation on the subject of representation,
since it came from the part of the State where no great
interest in slavery was felt ; and a reciprocal concession was
expected in return from the southern counties in regard
to representation.

The southern counties were considering not only the
immediate protection of slavery within the State, but the
future, when the institution of slavery would be practically
confined to southern Maryland. At the present rate of

* See chap, i, p. 20. 10 Debates, vol. i, p. 113.

419] The Convention. 41

decrease they considered that it would be only a few years
until slavery would have entirely disappeared from the
northern and western counties. They refused to com-
promise in any manner that would lessen their influence in
the General Assembly.

The committee on representation consisted of nine mem-
bers, representing Charles, Baltimore, Kent, Carroll, Tal-
bot, Somerset, Washington, Anne Arundel counties and
Baltimore City. The committee was unable to agree upon
any plan of apportionment.

On the nth of December, Mr. Merrick, of Charles
county, chairman of the committee on representation made
a negative report as follows:

(1) "Resolved, That it is expedient to regard federal
numbers in finding the estimates and basis of representa-
tion in the House of Delegates."

(2) " Resolved, That it is inexpedient to adopt a prin-
ciple of representation based exclusively upon popular
numbers in organizing the House of Delegates or the
Senate."11

Several of the members of the convention desired the
whole subject of representation to be postponed until the
convention had made further progress in making the con-
stitution. They considered the question of representation
was one to which more importance was attached than to
any other upon which the convention would be called to
act.

The delegates from Baltimore City consisting of Messrs.
Presstman, Gwinn, Brent, Stewart, Sherwood, and Ware
were opposed to referring the subject again to the com-
mittee in any form, and desired the whole subject of repre-
sentation to be discussed in the convention as a whole,
without the intervention of the committee. After several
attempts to recommit, the whole subject was laid upon the
table."

u Debates, vol. i, p. 106. The term " federal numbers " meant
the congressional ratio of i free to 3/5 slave population.
12 Debates, vol. i, p. 137.

42 The Maryland Constitution of 1851. [420

The first part of the report that federal numbers should
be used in finding the basis of representation was not
approved by the majority of the convention. Federal
numbers had been recognized in Maryland for the first
time, in an amendment of the constitution in 1836. It was
the result of a compromise based upon federal numbers
and territory. According to this one senator was elected
from each county and Baltimore City, while representatives
followed the federal ratio of population.

If federal numbers had been taken as a basis for repre-
sentation, it would have deprived southern Maryland of
a large part of her population in representation. In Bal-
timore City there were less than three thousand slaves,
while her free-negro class numbered nearly twenty-five
thousand.

As free negroes were to be counted as whites, though
having no political rights, federal numbers would have re-
duced the southern counties' representation unduly. In
Prince George's and Charles counties the slave popula-
tion exceeded the number of whites and free negroes com-
bined. In addition Baltimore City had a large alien popu-
lation, which, on the basis of federal numbers, would be
made equal to citizens in the counties, where the popula-
tion almost exclusively consisted either of native-born, or
of naturalized citizens.

Federal numbers in apportioning representation in the
Congress of the United States was the result of a com-
promise between the slave and the non-slave states. It
provided that taxation and representation should be appor-
tioned equally. The slave-holding states received as a
compensation for the non-enumeration of a portion of their
slaves in the apportionment of representation, an exemp-
tion to the same extent from taxation.

In Maryland there was no such compensation or equiva-
lent exemption proposed, or contemplated. The effect of
adopting federal numbers as a basis for representation
would have been to throw the loss occasioned by slavery,

421] The Convention. 43

on the particular portion of the State in which slaves were
most numerous.

In regard to the second part of the report that popula-
tion alone could not be taken as the basis of representa-
tion in the House of Delegates there was a division in the
convention. There was both a sectional and a political
interest against recognizing population as the basis of
representation; sectional, because it would have thrown
the smaller counties in the minority in future legislatures,
and political, because it would have given the State to the
Democrats. This latter event the Whigs, who were in
the majority, were determined to prevent.

There were two views held in the convention in regard
to representation between which a compromise had to be
made. The first was in favor of a system of representa-
tion on a population basis for the whole State. The sec-
ond favored representation on the basis of population for
the counties; but restricted Baltimore City to a represen-
tation equal to that of the largest county.

In some of the southern counties during the contest for
seats in the convention, the question of secession was dis-
cussed.13 It was decided in event of population being
taken as the basis of representation in the General As-
sembly of the State, that there should be engrafted on the
new constitution a provision, which would enable the
Eastern Shore and southern Maryland to secede peaceably
from the State, and unite with Delaware or Virginia. The
time of secession was to take place whenever the interest
of these sections seemed to require it.

For this purpose Mr. T. H. Hicks, afterwards governor
of Maryland, offered an amendment to the Declaration of
Rights providing, " That any portion of the people of this
State have the right to secede, and unite themselves and
the territory occupied by them to such adjoining State as
they shall elect."14 One of the members of the conven-

" Debates, vol. i, p. 156. 14 Debates, vol. i, p. 150.

44 The Maryland Constitution of 1851. \ \'>'>

tion humorously offered an amendment to the above by
adding, " provided we can get any State to accept us."

This attempt of the Eastern Shore to secede from the
Western Shore was not a new feature in the history of
Maryland. The prevalence of shore jealousy was very
strong in the convention which framed the constitution of
1776. A proposition was then made in that convention to
insert an article in the Declaration of Rights, acknowledg-
ing the right of either shore to separate from the other
whenever their interest and happiness so required. This
proposition in the convention of 1776 received the support
of sixteen out of the twenty-one members from the Eastern
Shore."

The amendment offered by Mr. Hicks was lost by a vote
of fifty-one to twenty-seven." It received the support of
fifteen out of the twenty-seven votes cast from the Eastern
Shore. The counties of Dorchester and Worcester voted
unanimously for secession. Queen Anne's county cast a
solid vote against it, and the other counties of the Eastern
Shore were divided in their vote." Mr. Hicks made a sec-
ond unsuccessful attempt to have his amendment adopted
when the convention was considering future amendments.1*

It was the deep interest in the maintenance of slavery
in the southern counties of both shores that caused those
sections of the State to view with alarm the demands of
Baltimore City and western Maryland for representation
based on population.

A provision was placed in the constitution intended to
remove the apprehensions of the southern counties in re-
gard to the protection of slave property, by prohibiting

18 McMahon's History of Md, p. 466.

18 Debates, vol. i, p. 156.

" Mr. Hicks, a number of years later, declared that he had intro-
duced the resolutions, not to declare an " inherent right," but to
give the people an opportunity to vote on the question. [See
Radcliffe: Governor Hicks of Maryland and the Civil War, p. 13,
note.]

18 Debates, vol. ii, p. 851.

423] The Convention. 45

the legislature from altering the relation of master and
slave as then existed in the State. The representatives
from the southern counties had no faith in a constitution,
especially since the old constitution had been abolished by
a revolutionary act.19 They did not consider themselves se-
cure unless they had the controlling influence in the gov-
ernment of the State in their own hands.

When the final vote was taken on the popular basis of
representation for the whole State, only seventeen votes
were cast in its favor, and sixty against it.20 Baltimore
City and Frederick county cast a solid vote for the popular
basis; Baltimore and Carroll counties three each, and Har-
ford county one. The remaining counties cast a solid
vote against the proposal.

The committee after a long deliberation and comparison
of views, found it impossible to concur by a majority in
any plan of representation. On the I5th of February, Mr.
Merrick, with the permission of the committee, submitted
a plan for consideration. The report was not one in
which the committee concurred. It was for the purpose
of bringing the subject before the convention that the
committee authorized the report to be made.

The plan submitted by Mr. Merrick gave Baltimore
City two more delegates than the largest county in the
House of Delegates; the members to be chosen annually.
The Senate was to be composed of twenty-two senators
elected for a term of four years. One senator from each
county, and two from Baltimore City; but the city was to
be divided into two senatorial districts and nine electoral
districts, for the purpose of electing members to the House
of Delegates. Each district was to elect one member.21
The proposition to district Baltimore City, as has been
done since, was advocated by the Whig voters of the city,
who were in the minority."

19 See ch. i, p. 32.

20 Debates, vol. i, p. 122.

21 Debates, vol. i, p. 285.

23 Baltimore American, November 20, 1850.

46 The Maryland Constitution of 1851. [KM

There were two minority reports made from the com-
mittee on representation; one by Mr. Lloyd, of Talbot
county (a Democratic district), giving to Baltimore City
five more delegates than the largest county and equal rep-
resentation in the Senate." The second minority report
submitted by Mr. Chambers, of Kent county, was the same
plan adopted in 1836 in all respects, except that it adopted
the aggregate population as a basis instead of federal
numbers." All of these plans for a basis of representation
were rejected by the convention.

There were several compromises offered, but none upon
which the convention could agree. Baltimore City was
willing to compromise on a territorial basis in the Senate;
but claimed popular representation in the House of Dele-
gates. They considered this would be a sufficient check
to prevent any legislation detrimental to the counties.

The plan of representation, which received the greatest
attention and support was known as the " Washington
county compromise." It was introduced by Mr. Fiery of
that county. The plan was based on federal numbers. If
adopted, it would have given Baltimore City four more
delegates than the largest county.15 This compromise was
rejected, afterwards reconsidered, and finally lost by a vote
of forty-seven to forty-six."

The question of apportioning representation was finally
disposed of April I. The plan was introduced by ex-Gov-
ernor Grason, of Queen Anne's county," subsequently
amended so as to give Baltimore City one additional rep-
resentative, and finally adopted by a vote of forty-three to
forty." Representation in the House of Delegates was ap-
portioned among the counties on a population basis; Balti-
more City was limited in the House to four more delegates
than the most populous county. No county was to have

* Debates, vol. i, p. 286. * Debates, vol. i, p. 287.

u Debates, vol. ii, p. 19. * Debates, vol. ii, p. 170.

" Debates, vol. ii, p. 197. * Debates, vol. ii, p. 199.

425] The Convention. 47

less than two members, and the whole number of delegates
never to exceed eighty.

In the Senate the method of federal representation was
adopted; one senator from each county and the city of
Baltimore elected by the people. This increased the rep-
resentation of Baltimore City in the General Assembly
from one-sixteenth to one-eighth of the total representa-
tion of the State.28

Among the reforms brought forward, that of the judi-
cial system of the State held a prominent place. The ju-
diciary had been but slightly changed since the framing of
the original constitution. In 1776 a court of appeals was
established, whose judgment was final in all cases of appeal
from the county courts, and courts of chancery. Orig-
inally there was also a court of admiralty, which court was
abolished at the time of the adoption of the United States
Constitution in 1789. In 1804 the State was divided into
six judicial districts. For each district three judges were
appointed by the governor with the approval of the Sen-
ate.

Reform in- the judiciary had been one of the prominent
features of the earlier agitation of 1836; but no change
was made at that time. The tenure during good behavior,
and the appointing of the judges by the governor, together
with the extraordinary expense attendant upon the ad-
ministration of justice were the principal grounds of com-
plaint. The annual cost incurred by the State for the
maintenance of the judicial system in salaries alone ex-
ceeded by several thousand dollars that of many other
states of the Union, far more populous and of much greater
territorial extent.80

A reduction in the number of judges and a limitation on
the income of county clerks, registers of wills, and other
officers it was thought, would afford relief to the taxpay-
ers of the State, and contribute toward payment of the

" See ch. iii, p. 75. 80 See ch. i, p. 19.

48 The Maryland Constitution of 1851. [426

public debt. It was also claimed lhat the appointive power
was abused and that the governor and Senate were in-
fluenced more by political considerations than by public
interest.

The majority of the committee on the judicial depart-
ment, Mr. Bowie, of Prince George's county, chairman,
submitted a report providing for an elective judiciary.
The term of office was to be ten years, and the judges re-
eligible. The State was to be divided into three judicial
districts; one on the Eastern and two on the Western
Shore. The report also provided for the election by pop-
ular vote of all clerks, registers of will, justices of the
peace, etc." All of these officers heretofore were ap-
pointed by the governor.

Mr. Bowie, in presenting the report of the majority said
that in his judgment, the reform in the judicial system of
the State was the most important question that could be
submitted to the convention. He claimed that southern
Maryland and the Eastern Shore would have never con-
sented to the calling of that convention, save for the reform
desired in the judiciary, and for the reduction in govern-
mental expenses."

On the i8th of March, Mr. Crisfield, of Somerset county,
one of \he most distinguished lawyers of the State, from
the minority of the same committee, submitted a report,
providing for an appointive judiciary; with a tenure for
good behavior. The State was to be divided into eight
judicial districts. The estimate of the probable cost was
placed at sixty-three thousand dollars per annum.
Twenty-nine thousand dollars more than the estimate of
the majority's report."

The contest in the judicial organization was over an
elective and an appointive judiciary. Public sentiment in
the State was strongly in favor of the former, though some

1 Debates, vol. i, p. 239.
32 Debates, vol. ii, p. 460. M Debates, vol. i, p. 516-519.

427] The Convention. 49

of the counties, as Harford, had instructed their delega-
tion to vote for the appointive system."

The general public desired to see a system which, while
it gave to the judges a term sufficient to guarantee their
independence would at the same time permit their work
to be reviewed by the people, or as one member of the
convention expressed it, " an independent judge dependent
upon the people." It cannot be said that the change to the
elective system satisfied the court, or the bar. It was in-
cidental to the transformation going on in the other de-
partments. Democracy rejected the appointive system.
Every official must be chosen by popular vote.

The old appointive system found its ablest defender in
Judge Chambers, of Kent county. He made a strong ap-
peal for the independence of the judiciary as a department
of the government, and as necessary to that independence,
the tenure during good behavior. Judge Chambers at-
tempted to show that there was as much reason for making
the judges independent of the people in the United States
as there was in England for making the judges independ-
ent of the crown. In his autobiography Mr. Chambers said
that he claimed the merit of being the most ardent oppon-
ent of the " novel and unwise " system of constituting the
judiciary by a popular election of judges.35

The convention rejected the appointive system by a vote
of forty-nine to twenty-three," also by a vote of more than
three to one the convention rejected an amendment offered
by Mr. Phelps, of Dorchester county, for the election oi
the judges by joint ballot of the two Houses of the Gen-
eral Assembly.87

The bill as originally reported by the majority, but
slightly amended, was adopted. The State was divided
into four judicial districts instead of three as the original

84 Baltimore Sun, August 4, 1850.

85 See autobiography in Scharf s Biographical Cyclopedia of
Representative Men in Md. and D. C.

* Debates, vol. ii, p. 492. 87 Debates, vol. ii, p. 487.

30

50 The Maryland Constitution of 1851, [ Jvis

report provided. Baltimore City embraced one district,
and the counties of the Eastern Shore a second.

The convention found great difficulty in determining
whether the future sessions of the General Assembly should
be held annually or biennially. Prior to 1846 the legisla-
ture had held annual sessions. In that year the General
Assembly referred the question of biennial sessions to the
voters of the State. The referendum was held on the gen-
eral election day in 1846. Each voter was asked by the
judges of the election whether he was in favor of biennial
or annual sessions. Biennial sessions were declared for
by a majority of some five thousand voters.

The biennial bill had been passed as an anti-reform meas-
ure. Its object was to reduce the governmental expenses
and to remove the agitation for a constitutional conven-
tion. The bill received its greatest support on the East-
ern Shore. The Western Shore gave a majority of some
twelve hundred against the change."

The committee on the legislative department favored bir
ennial sessions. When the report was read, an amend-
ment was offered providing for annual sessions. Political
considerations had great influence in the desire to return
to the annual sessions. The change in the basis of rep-
resentation would give the Democratic party the majority
in future legislatures. " Democracy demanded that elec-
tions be free and frequent."

Mr. Dirickson, of Worcester county, referring to the
vote of the people on the biennial bill in 1846, said, " It
was wonderful that those who professed to drink from the
very fount of Democracy — who worshiped at no other
shrine, and bowed to no other political god — should have
so soon not only scoffed at the mandates, but absolutely by
their speeches rebuked the very wisdom of the people." '

The argument in favor of annual sessions was made on
the ground that a greater amount of labor than usual

n Debates, vol. i, p. 277. w Debates, vol. i, p. 272.

429] The Convention. 51

would be imposed upon the General Assembly, by reason
of the necessity of enacting laws to carry out the provisions
of the new constitution. They claimed that biennial ses-
sions were anti-democratic in their tendency; and were an
indirect and open violation of the spirit of the clause in
the Declaration of Rights which declared that elections
ought to be free and frequent. As a proof that annual
sessions were necessary they referred to the states of New
York, Massachusetts, Pennsylvania, and other states,
which had annual sessions. They claimed that the rela-
tion which cities bear to the rest of the State, because of
the great concentration of population and capital in the
cities, rendered annual sessions of the legislature abso-
lutely necessary for the preservation of the equilibrium be-
tween the diversified interests. The convention finally
agreed to annual sessions for three years; thereafter the
sessions of the legislature were to be biennial.

The committee on the Declaration of Rights, Mr. Dor-
sey, of Anne Arundel county, chairman, submitted their
report on the nth of January, which was taken up by the
convention for discussion on the 28th.40 As reported by
the committee the preamble to the Declaration of Rights
read as follows: "We, the Delegates of Maryland, in
convention assembled, taking into our most serious con-
sideration the best means of establishing a good consti-
tution in this State, declare," etc. The words of the pre-
amble were substantially the same as those adopted in
1776.

Mr. Dashiell, of Somerset county, moved to amend the
preamble by inserting after the word " Maryland " the
words " representing the counties, and city of Baltimore." *
The object of the amendment was to assert the theory that
the counties and the city of Baltimore were parties to the
compact in their municipal capacities.

This theory of political individuality of the counties had

40 Debates, vol. i, p. 140. 41 Debates, vol. i, p. 235.

52 The Maryland Constitution of 1851. [430

been urged many times in the legislature, during the re-
form agitation, and was referred to in the convention. Mr.
Dashiell's view of the government of Maryland was that
of a confederation of counties: each county being a sepa-
rate and distinct community. He did not regard the coun-
ties as sovereignties, because the State herself had scarcely
a principle of sovereignty left after the formation of the
Federal Government.

The basis of this view of the political individuality of
the counties was an historical one. In the convention of
1776, which framed the original constitution of the State,
the counties were represented equally. In that conven-
tion the voting was by counties; and not by individuals,
except in certain cases, and on the final adoption of the
constitution." In the convention of 1776 Baltimore town,
and Annapolis city were recognized as boroughs; and a
representation of only one-half of that allowed to a county
was conceded to them. The resolution in determining the
representation of Baltimore town and Annapolis says,
" Nor shall the resolution be understood to engage or se-
cure such representation to Annapolis or Baltimore town,
but temporarily; the same being, in the opinion of this
convention, properly to be modified, or taken away, on
a material alteration of circumstances of those places,
from either a depopulation or a considerable decrease of
the inhabitants thereof." a

From these facts Mr. Dashiell argued that the right was
reserved to take away the representation of Annapolis and
Baltimore, under certain circumstances; but no such right
was given, reserved, or acknowledged to have the like
effect upon the counties under any circumstances what-
ever. The right to political existence and equal represen-
tation was reserved to each county, and whenever this
equal representation was to be changed, modified or abol-

! See Proceedings of Convention, June 25, 1774.
** Proceedings of Convention, July 3, 1776.

431] The Convention. 53

ished, it must be done by the free consent, or acquiescence
of the counties, that it was under this agreement of equal
representation that the counties entered into the compact
of government in 1776.**

The style of the preamble as finally adopted was intro-
duced by Mr. Randall, of Anne Arundel county.45 The
important change made substituted " people " for " dele-
gates." The whole clause reading: " We the people of
the State of Maryland, grateful to Almighty God for our
civil and religious liberty, and taking into our serious con-
sideration the best means of establishing a good constitu-
tion in this State, for the sure foundation, and more per-
manent security, thereof, declare," etc. This preamble was
copied verbatim in the constitution of 1867.

The first article of the Declaration of Rights, as re-
ported by the committee read as follows: "That all gov-
ernment of right originates from the people, is founded
in compact only, and instituted solely for the good of the
whole." Mr. Presstman, of Baltimore City, moved an
amendment to the above article by adding, " and they
have at all times the inalienable right to alter, reform,
or abolish their form of government in such manner as
they may think expedient." 4 The object of the amend-
ment was to vindicate the revolutionary character of the
convention, and to insert in the constitution the right of
revolution.

This doctrine that the majority of the voters of the State
had the right to alter or change the constitution whenever
and in whatever manner the majority deemed best, irre-
spective of legal authority, or constitutional means re-
ceived a large support during the reform agitation.
Although Mr. Gwinn, of Baltimore City, said in support
of the amendment that its object was not to assert the
right of revolution, but to compel the recognition by the

44 See Mr. Dashiell's speech, Debates, vol. i, pp. 437-441-

45 Debates, vol. ii, p. 785. 4" Debates, vol. i, p. 143.

54 The Maryland Constitution of 1851. [432

existing government of the source of power in the State.

The amendment of Mr. Presstman was taken from the
Declaration of Rights of the State of Texas, and appears
in the constitution or Declaration of Rights of several of
the states.*7

It was at this time that Mr. Hicks moved his amend-
ment to the Declaration of Rights, which provided for the
right of any portion of the State to secede from the other.48
The amendment of Mr. Presstman was amended so as to
give the majority of the voters the right of changing the
constitution, but in a legal manner, and was adopted.*

The 9th section of the report of the committee on the
legislative department declared that, " No priest, clergy-
man, or teacher of any religious persuasions, society or
sect, and no person holding any civil office of profit under
this State, except justices of the peace, should be capable
of having a seat in the General Assembly."

The Rev. Mr. Chandler, of Baltimore county, the only
clergyman in the convention, made a vigorous attempt to
abolish the first section of the clause, which he regarded
as entirely unnecessary and unjust. In defence of his mo-
tion to " strike out " Mr. Chandler said that, " Equal rights
and privileges to all " was a principle advocated by the
members of the convention, yet the same gentlemen calmly
unite their strength to blot from political existence a nu-
merous and influential class of citizens as wholly unworthy
of all confidence and even dangerous to the community.
" What great offence " he asked, " what crime have this
class of citizens committed, that they should be deprived of
one of the dearest privileges of American-born citizens —
that of eligibility to office? Have they committed treason?
Have they been guilty of highway robbery? Are they

*T Maine, Dec. of Rights, 2d sec., 1820; Massachusetts, Preamble
to Constitution. 1780; Vermont, Dec. of Rights, art. vii. 1793;
Connecticut, Constitution, art. i, 1818; Virginia, Dec. of Rights,
2d sec., 1820; Indiana, Constitution, art i, 2d sec., 1816.

* See ch. ii, p. 43. ** Debates, vol. i, p. 186.

433] The Convention. 55

murderers? None of these crimes have been alleged
against them; yet in the opinion of the committee they
were guilty of a crime, which should forever disfranchise
them as citizens of the State." 5 Twenty-one states out
of the thirty-one in the Union at that time had no pro-
scription measure against the clergy. Mr. Chandler's mo-
tion to strike out the section was defeated by a vote of
two to one."

The report of the committee on the executive depart-
ment was submitted by ex-Governor Grason, chairman, on
the 7th of March. The report provided for the election
of the governor by popular vote, for a term of three years.
The State was to be divided into three gubernatorial dis-
tricts. The counties on the Eastern Shore composed one
district; and the Western Shore the other two. From
each district the governor was to be chosen in rotation.
Mr. Dorsey, of Anne Arundel county, moved to amend
the report by the election of the governor by an electoral
college. This amendment was rejected by a vote of sixty
to nine." Several unsuccessful attempts were made to
have the State divided into four gubernatorial districts.
The report was amended by making the term of office four
years instead of three; and to be eligible to the office the
candidate was required to have been a citizen of the United
States for five years instead of ten, and a resident of Mary-
land for five years instead of seven.

The system of districting the State for the election of the
governor, was also attempted for the selection of United
States senators. In 1809 the legislature passed a law divid-
ing the State into United States senatorial districts of the
Eastern and Western Shores.58 A discussion arose in the
convention as to its legality. The law of 1809 had always
been observed by the General Assembly in selecting United
States senators. The question had never come before the

80 Debates, vol. i, p. 389. " Debates, vol. i, p. 394.

52 Debates, vol. i, p. 455- M Act l8°9» ch. 22.

56 The Maryland Constitution of 1851. [434

Senate of the United States for determination as to the
constitutionality of the law. Several members of the con-
vention held the opinion that the State of Maryland had
entire control over the whole subject of the election of
United States senators, except so far as limited by the
Federal Constitution, which provides that the election of
United States senators shall be by the state legislatures.*4

Other members of the convention contended that dis-
tricting the State into senatorial districts would be a vio-
lation of the Federal Constitution by adding other qualifi-
cations for United States senators than that provided for
by the Constitution of the United States. They argued
that if the legislature could restrict the selection of United
States senators to a district, it could equally restrict the
selection to a certain county, or city, and as a logical de-
duction the legislature had the authority to restrict the
selection of senators to a certain party, or class.

Mr. Bowie, of Prince George's county, moved an amend-
ment to the 24th section of the legislative report, making
it obligatory upon the General Assembly to lay off six
United States senatorial districts. Mr. Bowie said that
it was of great importance to the agricultural portions oi
the State that they should be represented in the Senate of
the United States, and should not always be overruled by
the commercial interest. In the Senate of the United
States, above all places, could agriculture be fostered and
protected."

Another able defender of the proposition for district-
ing the State for United States senators was found in Mr.
T. H. Hicks: "a feeble representative of the Eastern
Shore " as he called himself. Mr. Hicks said he did not
profess to be versed in the law ; but he did profess to have
some common sense, and to understand to some extent
the rights of the people of Maryland. " Were the people
of the Eastern Shore," he asked, " to be retained as men

84 U. S. Constitution, art. i, sec. 3. M Debates, vol. ii, p. 259.

435] The Convention. 57

serfs, hewers of wood and drawers of water for the city of
Baltimore?" If they could be allowed to secede from the
Western Shore they would gladly do it. But no, they had
built canals and railroads for the city of Baltimore, and
their services were still required. Ten votes in the legis-
lature had been voted to Baltimore City, and she seemed
now to be hardly as well — certainly not more satisfied —
with ten than she had been with five. In a short time
Baltimore City would require a still greater representa-
tion. At each new change the agricultural and slave in-
terests were less protected. He believed it to be right and
essential for the protection of the interest of the Eastern
Shore, that the Eastern Shore should have a representa-
tive in the Senate of the United States.54

Mr. Bowie subsequently substituted two senatorial dis-
tricts for six as his original amendment provided. The
Eastern Shore comprised the first district, and the Western
Shore the second." The convention, after a protracted de-
bate, refused to place in the constitution a provision for
districting the State for the election of United States sena-
tors.

The convention had considerable difficulty in determin-
ing the manner in which future amendments to the consti-
tution should take place. The report of Mr. Sellers, of
Calvert county, chairman of the committee on future
amendments and revision, gave the amending power to the
General Assembly. The report also provided for a consti-
tutional convention. The convention was to be called by
the General Assembly, subject to the ratification by the
succeeding legislature, after a new election. The report of
Mr. Sellers did not receive the assent of the majority of
the committee."

On the next day (April 4) Mr. Fitzpatrick, of Allegany
county, from the same committee submitted a report in

M Debates, vol. ii, p. 282-283.

87 Debates, vol. ii, p. 270. M Debates, vol. ii, p. 223.

60 The Maryland Constitution of 1851. [438

pointed a committee to whom was referred the subject of
the status of the free colored population. The committee
was required to submit to the convention " some prospec-
tive plan, looking to the riddance of this State, of the free
negro, and mulatto population thereof, and their coloniza-
tion in Africa."

The increase of the free black population in Maryland
between the years of 1840 and 1850 was eleven thousand
one hundred and twenty-nine. From 1790 to 1850 the
annual increase averaged one thousand and fifty-two. The
counties of Cecil, Kent, Caroline, Worcester, Harford and
Baltimore City, had more free negroes than slaves in 1850.
The counties of Charles, St. Mary's, Calvert, Kent, Caro-
line and Worcester showed an increasing per cent of free
negroes over the whites in the ten years between 1840 and
1850. The total white increase during the same decade
for the whole State was 29.9 per cent. The free black in-
crease was 17.9 per cent. Slaves had decreased." The
committee showed that at the given rate of progression,
the free negro population must in a few years exceed the
white population in eleven of the counties. The committee
explained the cause of this increase by the emigration of
the white population to the western states, while the free
negro remained, knowing that when once he emigrated, the
law forbade his return.

The Maryland State Colonization Society was incorpor-
ated by the state legislature in 1831." The object of the
society was to employ the funds collected in Maryland for
the removal of the free negro population. From this time
the plan of colonization in Africa was adopted as a state
policy.

The act of 1831 ordered the governor and council to
appoint a board of three managers, members of the Mary-
land Colonization Society, whose duty it should be to

85 Committee's Report, Debates, vol. ii, p. 220.
** Act 1831, ch. 314.

439] The Convention. 61

have removed from Maryland all blacks then free who
might be willing to leave. All those who might be freed
subsequently to the act were to be removed whether wil-
ling or not.87

In 1834 the State Colonization Society purchased terri-
tory in Liberia, Africa, to the extent of one hundred and
thirty miles on the Atlantic Coast, and to an indefinite ex-
tent into the interior. The seat of the government was
Cape Palmas. For the removal of the free black popula-
tion the treasurer of the State was authorized to contract
loans to the amount of two hundred thousand dollars.
Ten thousand dollars were placed annually upon the tax-
list to pay the interest on the loans, and to provide for the
payment of the principal. Between -the years of 1831 and
1850 there were one thousand and eleven free negroes
colonized in Africa from the State of Maryland, at a cost
of two hundred and ninety-eight thousand dollars. Of
this amount one hundred and eighty-four thousand five
hundred and thirty-three dollars was paid by the State.

The committee reported the following to be placed in
the constitution:

Sec. i. "The General Assembly shall have power to
pass laws for the government of the free colored popula-
tion and for their removal from the State, and at its first
session after the adoption of this constitution, shall pro-
vide by law for their registration."

Sec. 2. " No person of color shall be capable of pur-
chasing or holding real estate within this State, by title
acquired after the adoption of this constitution, . . . ."

Sec. 3. " No slave shall be emancipated or become free
except upon condition that he or she leave this State
within thirty days next after his or her right to freedom
shall accrue."

Sec. 4. " No free person of color shall immigrate to, or
come within this State to reside." M

87 Brackett, The Negro in Md., p. 165.
68 Debates, vol. ii, p. 223.

62 The Maryland Constitution of 1851. [440

The report of the committee on the free negro popula-
tion was never considered by the convention ; though there
were several attempts made for its consideration. The
question was considered when the twenty-first article of
the Declaration of Rights was under discussion. This
article declared : " That no freeman ought to be taken
or imprisoned, or disseized of his freehold, liberty or privi-
leges, or outlawed, or exiled, or in any manner destroyed,
or deprived of his life, liberty or property, but by the judg-
ment of his peers, or by the law of the land." "

Mr. Brent, of Baltimore City, moved an amendment to
the article by substituting the word " citizen " for " free-
man." 7 Mr. Brent said that the object of the amendment
was to provide for a contingency, which might arise, in
which it would be necessary to banish the free negro popu-
lation of the State. He considered that without his amend-
ment the Declaration of Rights would prohibit the legisla-
ture from removing this class. Several members of the
convention expressed their belief that the time was not
far distant when the State would be compelled to take
serious measures for the removal of the free colored
population from its borders. Mr. Merrick, of Charles
county, said that the time must come when a separation,
peaceably or forcibly, must take place between the free
blacks and the whites. No two distinct races could, or
ever would, inhabit the same country, except in the relative
condition of master and slave — of the ruler and the ruled.
Sooner or later they must separate or the extermination of
the one or the other must take place. The black race
could not remain; they were multiplying too fast."

Under the original constitution there was no difference
in the character of citizenship between freemen of what-
ever color. In 1802 the political power of the State was
vested in free white male citizens only." Since that time

" Compare Magna Charta, art. 39. I0 Debates, vol. i, p. 194.
71 Debates, vol. i, p. 197-198. 7J Act 1802, ch. 20.

441] The Convention. 63

the free negro had no political rights whatever. Mr.
Brent's amendment was rejected, and a provision was in-
serted in the Declaration of Rights, which permitted the
legislature to pass laws for the government, and disposi-
tion of the free colored population.73

A petition was presented to the convention from a num-
ber of citizens of Frederick county, praying that an article
be inserted in the constitution, compelling all free negroes,
annually to give bond, with responsible security to the
State, for their good behavior; in default of bond they
were to be compelled to leave the commonwealth.7*

Another question of interest that received the earnest
consideration of the convention, but upon which no final
decision was taken was the question of public education.
Maryland at that time had no general system of public
schools." Each county and city maintained its own
schools, except as to certain funds distributed by the State.
These funds were derived from different sources. The
first was called " The Free-School Fund." It was derived
from the surplus revenue of the Federal Government dis-
tributed among the states.™ The free-school fund
amounted to nearly sixty-three thousand dollars in 1851."
This fund was distributed among the counties and Balti-
more City as follows: one-half equally, and one-half ac-
cording to the white population of each respectively.

The second fund was derived from certain taxes on
banks.™ It amounted to about twenty thousand dollars in
185 1.7* All fines collected from the violation of the laws

73 Dec. of Rights, 1851, sec. 21. '* Debates, vol. i, p. 371.

n See Steiner's History of Education in Md., p. 66.

79 An act of the legislature 1836, ch. 220, sec. i, provided that of
the money received, and to be received from the Federal Govern-
ment, $274,451 should be set aside for the purpose of defraying the
interest on the public debt already created. The residue was to
be deposited with banks, with interest at 5 per cent or more; the
interest accruing was to be distributed among the counties and
Baltimore City for the support of common schools.

77 Debates, vol. i, p. 431.

78 Act 1821, ch. 113. 79 Debates, vol. i, p. 431.

64 The Maryland Constitution of 1851. [442

against betting on elections; and all deposits of wagers on
elections, were to be paid to the treasurer of the Western
Shore for the benefit of the school fund,80 the fines col-
lected from persons violating the oyster laws were also
appropriated to the same purpose.*1

On the 25th of February, Mr. Smith, of Allegany county,
chairman of the committee on education submitted a ma-
jority report. The report recommended to the legislature
to establish a permanent and adequate school fund, so
soon as the financial condition of the State should justify
it. The fund was to be securely invested, and remain per-
petually for educational purposes. The legislature was also
to establish a uniform system of public schools through-
out the State. The report also provided for the estab-
lishing of a State Normal School, and for the election
of a state superintendent of public schools.81 The consid-
eration of the committee's report, after several attempts
to have it taken up by the convention, was postponed in-
definitely, and no final action was taken on the subject.

The question of public education was discussed in the
convention when the report of the committee on the legis-
lative department was considered. The original bill as re-
ported by this committee provided that no loans should
be made upon the credit of the State, except such as may
be authorized by an act of the General Assembly passed
at one session; and be confirmed at the next regular ses-
sion of the General Assembly." Mr. Constable, of Cecil
county, moved an amendment to this article by inserting
a provision which would authorize the legislature to im-
pose taxes for the establishment of a uniform system of
public schools throughout the State, adequately endowed
to educate every white child within its limits.*4 This
amendment was rejected. The extravagance of the legis-

" Act 1839, ch. 392, sec. 2. n Act 1833, ch. 254, sec. 5.

83 Debates, vol. i, p. 339.

* Debates, vol. i, p. 124; Committee's Report, sec. 21.

M Debates, vol. i, p. 395.

443] The Convention. 65

lature in granting state aid to works of internal improve-
ment, created a general demand for restriction on the
power of the General Assembly to make appropriations.

The convention adopted a provision which prohibited
the legislature from appropriating public money, or pledg-
ing the State's credit for the use of individuals, associa-
tions, or corporations, " except for purposes of education."
The last clause was an amendment introduced by Mr.
Davis, of Montgomery county, an ardent advocate for a
general system of public education. This amendment of
Mr. Davis was adopted by the convention by a vote of 43
to 24 ;M but on the motion of Mr. Thomas, of Frederick
county, was reconsidered and rejected by a vote of 39 to

31.-

The opposition to the establishing of a uniform system
of public education within the State, came from Balti-
more City and the larger counties. The cause of the op-
position was due to the very unequal manner in which
the existing school fund was distributed; and because many
of the counties and Baltimore City had ample provisions
for schools under their local systems. Several of the
counties had their own funds specially devoted to educa-
tional purposes. There was a general feeling of disap-
pointment in the convention at the failure to provide for a
uniform system of public schools. One member advocated
a poll-tax. No man, he said, would be so unworthy the
name of an 'American citizen as to refuse the price of one
day's labor, to maintain public schools.87 It is noteworthy
that the constitutional convention in 1864 provided for a
uniform system of public schools along the line recom-
mended by the committee on education in 1851.

Petitions were presented to the convention from citi-
zens of thirteen counties, and from Baltimore City, praying
that a provision might be made in the constitution which
would prohibit the legislature from granting the privilege

80 Debates, vol. i, p. 425. M Debates, vol. i, p. 433.

81 Debates, vol. ii, p. 808.

31

66 The Maryland Constitution of 1851. [4-H

to sell intoxicating liquors to any person in any part of the
State, except on the condition that his application to sell
the same was approved by a majority of the voters in the
district where the liquors were to be sold. The petitions
were referred to a special committee; but no report was
made. One member made the proposition that every
member of the convention should join the temperance
society."

Mr. Hicks proposed an amendment which would make
it unconstitutional for a member of that convention to ac-
cept any office or an appointment under the constitution
until ten years after its adoption. This amendment was
rejected by a vote of 39 to 32."

The convention, after a session of more than six months,
adjourned sine die on the I3th of May, at 1.30 A. M. The
constitution was not adopted as a whole by the convention.
That a majority of the members present at the final session
would have voted for its adoption, is doubtful. The final
adjournment took place rather unexpectedly. The reports
from several committees had not been considered.

There was a general feeling of disappointment through-
out the State with the convention, and a demand for its
adjournment. The last scene was one of confusion and
disorder. A gentleman, who was present at the final ses-
sion, and whom the Baltimore American assures the readers
was an authentic and responsible person, said that there
were some things connected with the constitution of 1851
which properly belongs to its history, but which would
never appear in the official proceedings as published. A
few days before the adjournment it was announced by
several of the leading and most influential men of the " re-
form party " that a final vote of acceptance on the con-
stitution as a whole would be taken, when all the parts
were completed and arranged. At this time there were
some eighty or ninety members in attendance. It soon

* Debates, vol. ii, p. 605. * Debates, vol. i, p. 205.

445] The Convention. 67

became evident that the known objections to certain pro-
visions in the constitution would prevent its acceptance by
the majority of the convention. Finding that the consti-
tution would not be adopted as a whole, an order was
passed that when each separate part of the document
had been passed, the whole should be signed by the presi-
dent and secretary. To further these purposes a day was
set on which all must be finished; whether ready or not
the convention must close. The committee on revision
sat in the senate chamber, and as fast as a defect or omis-
sion was discovered, sent in one of their members to have
it corrected by the convention. The last scene would
have been amusing, had the occasion not been a grave
one. At two in the morning the committee on revision,
headed by its chairman, with an assembly partly excited
and partly asleep, was presenting as the constitution a
bunch of paper only fit to be offered at the counter of a
rag merchant. Some asked for a needle and thread to
stitch the constitution.

Our author concludes as follows : " If the law-loving
and dignified men, who framed the constitution of 1776,
were permitted to revisit the scenes of their former glory,
they would have bowed their heads with shame at the de-
generacy of their posterity." '

Frequently the convention was unable to transact busi-
ness for want of a quorum. The Baltimore Sun in an edi-
torial May 7, 1851, said that, "It is clear to every dis-
passionate observer that the people were either remiss in
their selections of men as reformers ; were governed in the
matter by party rather than by political considerations, or
were unprepared to appreciate the quality and character
of a bold and searching reform. Instead of a convention
of men acting under an exalted sense of great responsi-
bility, we have seen on the part of many of them a constant
display of factious opposition, originating in sectional in-
terests, and party prejudice."

*° Baltimore American, May 19, 1851.

CHAPTER III
THE CONSTITUTION

The constitution was submitted to the voters of the
State, June 4, 1851, and was ratified by a majority of
10,409 votes.1 The eight counties of the Eastern Shore
gave a majority of 1337 for the new constitution. The
counties of Anne Arundel, Charles, Calvert, Kent, Mont-
gomery, Prince George's, Somerset and St. Mary's voted
against its adoption.

The constitution pleased no one; but to many it was an
improvement on the old one, " a thing of shreds and
patches." Of the sixty articles of which the original con-
stitution consisted, twenty-five had been abrogated and
twenty had been so amended as to have retained little of
their original form. Altogether there had been sixty-six
amendments made.

Only twenty-two days intervened between the adjourn-
ment of the convention and the ratification of the consti-
tution. During this time the friends and opponents of
the new constitution kept constantly before the public its
merits and defects.

It has been stated that the people of the State adopted
the constitution of 1851 without a full knowledge of its
provisions. This statement appears to be entirely un-
founded. The text of the constitution was published in
the daily and weekly presses of the State. It was also pub-
lished in pamphlet form. Furthermore it was translated
into German, and published in the daily Deutsche Corre-
spondent, a paper having quite a reputation in its activity
for promulgating the public documents and laws among
the large number of Germans in the State.'

1 See Appendix, p. 86. * Baltimore Sun, May 22, 1851.

447] The Constitution. 69

Of the one hundred and three members of the conven-
tion, only fifty-five favored the adoption of the constitu-
tion.3 The president of the body, himself, the Hon. John G.
Chapman, a few moments before he declared the conven-
tion adjourned sine die, said, that he had witnessed with
profound regret many of the features embodied in the con-
stitution. That the salutary changes were so few and light
when weighed in the balance against graver and more ob-
jectionable features, that he had no other alternative than
to vote, at the ballot-box, against its ratification.*

While the constitution was before the people for their
consideration, the general tone of public discussion in re-
gard to the work was free from strict party spirit. Two of
the leading Whig papers: the Frederick Herald and the
Hagcrstown Torchlight declared in favor of the new consti-
tution. The Democratic papers generally throughout the
State urged its adoption, as well as several of the neutral
county presses. The Cambridge Democrat, the Centerville
Sentinel and the Easton Star were also in favor of adopting
the constitution. These papers, while not entirely satisfied
with the instrument, considered it an improvement on the
old one. Other papers, as the Rockville Journal and the
Port Tobacco Times, urged the rejection of the constitution.8
The Baltimore American was very strong in its opposition
to the constitution, while the Baltimore Sun strongly urged
its adoption.

While the discussion on the constitution was free from
party spirit, it was not free from the appeals of the dema-
gogues, who sought to array the poor and the rich in an-
tagonistic positions.* The provisions of the constitution
relating to the homestead exemption,7 and to the abolish-
ment of imprisonment for debt,8 gave rise to these unjusti-
fiable attacks.

8 Baltimore Sun, May 14, 1851. 4 Debates, vol. ii, p. 890.

8 Baltimore Sun, May 23, 1851.

0 Baltimore American, June 2, 1851.

7 See page 78. 8 See page 78.

CHAPTER III
THE CONSTITUTION

The constitution was submitted to the voters of the
State, June 4, 1851, and was ratified by a majority of
10,409 votes.1 The eight counties of the Eastern Shore
gave a majority of 1337 for the new constitution. The
counties of Anne Arundel, Charles, Calvert, Kent, Mont-
gomery, Prince George's, Somerset and St Mary's voted
against its adoption.

The constitution pleased no one; but to many it was an
improvement on the old one, " a thing of shreds and
patches." Of the sixty articles of which the original con-
stitution consisted, twenty-five had been abrogated and
twenty had been so amended as to have retained little of
their original form. Altogether there had been sixty-six
amendments made.

Only twenty-two days intervened between the adjourn-
ment of the convention and the ratification of the consti-
tution. During this time the friends and opponents of
the new constitution kept constantly before the public its
merits and defects.

It has been stated that the people of the State adopted
the constitution of 1851 without a full knowledge of its
provisions. This statement appears to be entirely un-
founded. The text of the constitution was published in
the daily and weekly presses of the State. It was also pub-
lished in pamphlet form. Furthermore it was translated
into German, and published in the daily Deutsche Corre-
spondent, a paper having quite a reputation in its activity
for promulgating the public documents and laws among
the large number of Germans in the State.'

1 See Appendix, p. 86. * Baltimore Sun, May 22, 1851.

447] The Constitution. 69

Of the one hundred and three members of the conven-
tion, only fifty-five favored the adoption of the constitu-
tion.3 The president of the body, himself, the Hon. John G.
Chapman, a few moments before he declared the conven-
tion adjourned sine die, said, that he had witnessed with
profound regret many of the features embodied in the con-
stitution. That the salutary changes were so few and light
when weighed in the balance against graver and more ob-
jectionable features, that he had no other alternative than
to vote, at the ballot-box, against its ratification.*

While the constitution was before the people for their
consideration, the general tone of public discussion in re-
gard to the work was free from strict party spirit. Two of
the leading Whig papers: the Frederick Herald and the
Hagerstown Torchlight declared in favor of the new consti-
tution. The Democratic papers generally throughout the
State urged its adoption, as well as several of the neutral
county presses. The Cambridge Democrat, the Centerville
Sentinel and the Easton Star were also in favor of adopting
the constitution. These papers, while not entirely satisfied
with the instrument, considered it an improvement on the
old one. Other papers, as the Rockvilk Journal and the
Port Tobacco Times, urged the rejection of the constitution.5
The Baltimore American was very strong in its opposition
to the constitution, while the Baltimore Sun strongly urged
its adoption.

While the discussion on the constitution was free from
party spirit, it was not free from the appeals of the dema-
gogues, who sought to array the poor and the rich in an-
tagonistic positions.8 The provisions of the constitution
relating to the homestead exemption,7 and to the abolish-
ment of imprisonment for debt,8 gave rise to these unjusti-
fiable attacks.

8 Baltimore Sun, May 14, 1851. * Debates, vol. ii, p. 890.

5 Baltimore Sun, May 23, 1851.

8 Baltimore American, June 2, 1851.

7 See page 78. 8 See page 78.

70 The Maryland Constitution of 1851. [448

The chief objection to the new constitution was the
change introduced in the organization of the judicial sys-
tem of the State. The Baltimore American in an editorial
of June 3, 1851, declared, that "there were many men in
Maryland, who, if they approved of every feature in the
constitution, save that which reorganized the judiciary,
would vote against the constitution on account of that one
insuperable objection."

Other objections to the adoption of the constitution
were placed on less objectionable grounds. An attempt
was made tc show that there would be a period of four
months of anarchy in the State, if the instrument was
adopted. During these four months civil wrongs would
go unredressed; debts uncollected, and crimes unpunished.

The constitution, if adopted, was to go into effect July
4. No election was to be held until November the 5th.
Until the latter date, the new offices created by the new
measure could not be put in operation, while the offices
which were to be abolished were to be discontinued from
the day of its adoption. The county courts, and the Balti-
more City court were abolished. No specific provisions
were made for the continuation of the jurisdiction of these
courts until their successors could be established. The
court of chancery, which was also abolished, was to con-
tinue by a specific provision until two years after the adop-
tion of the constitution.* Those who opposed the adoption
maintained that the same provision did not apply to the
former courts.10

The framers of the constitution intended that the eighth
section of Article 10 should bridge over the transition
period. This section provided that the governor and all
civil and military officers then holding commissions should
continue in office until they were superseded by their suc-
cessors. Whether the adoption of the constitution would

" Constitution 1851, art. iv, sec. 22.
10 Baltimore American, May 26, 1851.

449] The Constitution. 71

or would not create an " interregnum " of four to six
months in the administration of justice was a debatable
question. The omission of a definite provision for the
continuation of the courts until their successors could be
established, shows the inability of the majority of the
framers of the constitution to do the task assigned them.

A contributor to the Baltimore American from Cumber-
land, Md., states that he observed a group of citizens on
the street discussing the constitution. " One said that it
had cost the State $183,000, which, according to the best
calculation he could make, was a little more than $1.50
per word, which, considering the quality of the goods,
made it about the hardest bargain of modern times."1

Other motives than the merit of the constitution in-
fluenced many to vote for its adoption. Its rejection
would have again placed the fundamental law of the State
in the power of the General Assembly. Governor Lowe in
his inaugural address, January 6, 1851, referring to the
convention then in session said, " Even should no practi-
cal reforms result from the labors of the present conven-
tion, still I regard the value of the principle, now estab-
lished, so great in view of the possible future, as to hold
the expense, inconveniences, and even total failure of this
first attempt, however deplorable, to be entirely of subor-
dinate importance. While, therefore, the people yearn for
the enjoyment of those salutary reforms, which right, jus-
tice, and good policy call for; and although they should
possibly be doomed to meet with a total or partial disap-
pointment of their reasonable hopes, they cannot forget to
console themselves with the knowledge that the great
battle, in fact was fought and won, when the legislature
after a steady resistance of twenty years, finally pro-
mulged, and Maryland by an almost unanimous vote
ratified the doctrine, that the people are not enchained by
the fifty-ninth article of the constitution." This is the en-
tering wedge to the future. This is the key to the treas-

11 Baltimore American, June 2, 1851. " See ch. i, p. 10.

72 The Maryland Constitution of 1851. \ !:•«»

ury of popular rights. With this weapon the people will
be resistless, in all future struggles for the extension of
their privileges." '

On the whole, the constitution of 1851 was rather a poor
instrument, though there were some salutary reforms
made. A comparative study of the constitution with the
one it superseded reveals some radical changes.

In the Declaration of Rights there were but few changes
made. The addition to the first article, which declared
that the people had at all times, according to the mode
prescribed in the constitution, the inalienable right to
alter, or abolish their form of government in such manner
as they may deem expedient, was a subject of much discus-
sion during the reform agitation, and in the convention.14

The twenty-fourth article of the Declaration of Rights
declared that no conviction should work corruption of
blood, or forfeiture of estate. This was a modification of
the original article, which permitted forfeiture of estate
for murder, and treason against the State, on conviction
and attainder." A new article was inserted in the Decla-
ration of Rights, which declared that the legislature ought
to encourage the diffusion of knowledge and virtue, the
promotion of literature, the arts, sciences, agriculture,
commerce, and manufactures, and the general ameliora-
tion of the condition of the people.19

The thirty-fourth article of the Declaration of Rights is
especially worthy of notice, as it permitted Jews and others
to hold office, if they declared their belief in a future state
of rewards and punishments. The constitution of 1776
required in addition to the oath of support and fidelity to
the laws and constitution of the State, a declaration of a
belief in the Christian Religion."

13 Debates, vol. ii, p. 96. " See ch. ii, p. 26.

15 Dec. of Rights, 1776, art. 24.

18 Compare Cal. Const. 1849, art. x, sec. 2.

" Dec. of Rights, 1776, art. 35. The latter clause was repealed in
1826, and Jews were given the same privileges as Christians. See
Steiner's Citizenship and Suffrage in Md., p. 33.

451] The Constitution. 73

The first article of the constitution relates to the elective
franchise. Some salutary reforms were made in this with
the view of obtaining the purity of the ballot-box. Il-
legal voting had been a great source of complaint from
both political parties. The right of suffrage required a
residence of twelve months in the State, and six in the
city or county. The act of Congress requiring members
of that body to be elected by single districts throughout
the United States, made it necessary to divide the State
into congressional districts. There was no fixed dura-
tion of residence required in passing from one district to
another within the same county or city. This gave fa-
cility to the perpetration of frauds on the elective franchise
under the system, known as " colonizing voters."

The first attempt to have a registration of voters was
made in 1837. In that year a law was passed to provide
for the registration of the voters in Baltimore City. This
law was considered by many to be unconstitutional, be-
cause it imposed duties upon the citizens of Baltimore City,
which were not common to other citizens of the State. An
unsuccessful attempt was made in the convention of 1850
to provide for a general registration law in the State. It
was not until 1865 that Maryland had such a law.18

The constitution of 1851 required six months' residence
in the district, and twelve in the State, in order to exer-
cise the right of suffrage. The right to vote was retained
in one district, until the same right was acquired in an-
other. The constitution also provided that a person guilty
of receiving or giving bribes for the purpose of procur-
ing votes, should be forever disqualified to hold any
office of profit or trust, or to vote at any election there-
after. The pardoning power of the governor did not ex-
tend to this offense. All officers before entering upon
their duties were obliged to take an oath that they had not
been guilty of bribery or fraud in any way.19

18 Steiner's Citizenship and Suffrage in Md., p. 47.

19 Art. i, sec. 4.

74 The Maryland Constitution of 1851. [ l.Vi

The constitution of 1851 made only slight changes in
the executive department of the State. Prior to 1836 the
governor was elected by joint ballot of both Houses ot
the General Assembly. By an amendment to the consti-
tution in that year, the governor was to be elected by pop-
ular vote. The term of office was for three years. The
State was divided into three gubernatorial districts, from
each of which the governor was to be chosen in rotation.

The constitution of 1851 adhered to the system of dis-
tricting the State for the election of the governor. The
counties of the Eastern Shore formed one district. St.
Mary's, Charles, Calvert, Prince George's, Anne Arundel,
Montgomery, and Howard counties, and Baltimore City
formed a second district. Baltimore, Harford, Frederick,
Washington, Allegany, and Carroll counties constituted
the third district. The qualification for the office of gov-
ernor was slightly changed. The requirements were a
five years' residence in the State, and a three years' resi-
dence in the district from which he was elected.

The most important change in the executive department
was the limitation on the governor's appointing power.
Previous to the adoption of the constitution of 1851, the
governor, with the consent of the Senate, appointed the
chancellor, all judges and justices and all civil officers of
the government (assessors, constables, and overseers of
roads only excepted)." The governor also appointed the
clerks of the several county courts; the clerks of the court
of appeals, and of Baltimore City court. The register of
the High Court of Chancery, and the registers of wills
throughout the State were also appointed by the gover-
nor." This extensive power of appointment, or the " ex-
ecutive patronage " as it was called, was thought to have
an injurious influence upon popular elections, and a grow-
ing tendency to abuse.% The constitution of 1851 provided
for the election of nearly all of these officers by popular

20 Constitution 1776, art. 48. " Act 1836, ch. 224, sec. i.

453] The Constitution. 75

vote. A new duty was imposed upon the governor, by
making it obligatory on him to examine semi-annually the
treasury accounts.22

In the legislative and judicial departments the changes
made by the constitution were more radical and numerous.
The term of office of state senator was reduced from six
to four years. One-half of the Senate was to be elected
biennially, instead of one-third as formerly. The six-year
term was thought to be so long as to take away, in a meas-
ure, the responsibility of senators to the people, for their
conduct. No change was made in the mode of electing,
nor in the numbers of senators. Each county and Balti-
more City was given one senator.23 For the first time in
the history of the State, representation in the House of
Delegates was based on the aggregate population.24 This
principle extended only to the representation of the coun-
ties. Baltimore City was limited to four more delegates
than the largest county. Baltimore county was the most
populous county in the State. Its population in 1850, in-
cluding free black and slaves, was 41,589. The popula-
tion of Baltimore City was 169,012, a difference of 127,-

423"

The duty imposed upon the legislature to appoint two
commissioners to revise and codify the laws of the State
deserves to be noticed. There had long been need of a
proper codification. Several attempts had been made, but
without success.

Another salutary change in the constitution was the
provision that no bill should become a law unless it was
passed in each House by a majority of the whole number
of members elected, and unless, at its final passage, the ayes
and noes were recorded.28 Formerly a great number of
laws were passed by the silent assent of many of the mem-
bers of the legislature. No vote being recorded, the mem-

M Art. ii, sec. 17. 28 Art. iii, sec. 2.

M See ch. i, p. 17.

28 U. S. Census; Debates, vol. i, p. 287.

* Constitution 1851, art. iii, sec. 19.

76 The Maryland Constitution of 1851.

bers of the General Assembly were enabled to escape from
the responsibilty of injurious legislation.

The constitution of 1776 permitted the Senate to give
only their assent or dissent to all money bills. This re-
striction was removed by the constitution of 1851.

In Maryland until 1841 divorces were granted by the
legislature, and no court had power to grant them. By
an Act of 1841, ch. 262, for the first time, jurisdiction over
applications for divorce was conferred upon equity courts.
But it was held that this did not divest the legislature of
its power to grant divorces." The constitution of 1851
gave the equity courts the exclusive power to grant di-
vorces. This change was made on the ground that it
consumed too much of the legislature's time, and because
it is properly a judicial act. The legislature in 1849, i*
was said, granted twenty-one divorces, and that gener-
ally upon e.v-parte testimony."

The constitution of 1851 prohibited the legislature from
contracting debts, unless authorized by a law providing
for the collection of an annual tax sufficient to pay the in-
terest of the debt contracted, and to discharge the debt
within fifteen years. The amount of debt contracted
should never exceed one hundred thousand dollars. The
credit of the State was not to be given in aid of any indi-
vidual, association, or corporation. The General Assembly
was prohibited from involving the State in the construc-
tion of works of internal improvement, or making appro-
priations to works of like character.2*

The office of attorney-general was abolished. Judge
Chambers, of Kent county, one of the delegates to the
convention of 1850, fourteen years later said that the
reason for the abolition of this office was purely from per-
sonal considerations, having relation to an individual,

21 See Wright's Case, 2 Md. 429.

28 Debates, vol. i, p. 247.

a Const. 1851, art. iii, sec. 22.

455] The Constitution. 77

who, it was supposed was going to obtain the office.30 The
evidence for this assertion does not appear in the debates
of the convention. The office was abolished by a vote of
45 to 14. Mr. Chambers himself voted for its abolish-
ment.31

The office of attorney-general was created by the con-
stitution of 1776. The attorney-general was appointed by
the governor, with a tenure of office during good behavior.
The duties of the attorney-general were left undefined.
In 1816 the legislature abolished this office." But in the
succeeding session, a law was passed re-establishing the
office, and defining its duties. In 1821 the duties of at-
torney-general were further defined. He was required to
prosecute and defend on the part of the State all cases
wherein the State was interested. He was required to
give legal advice whenever the General Assembly, or the
governor required it. He had also authority to appoint
deputies in each county and in Baltimore City to aid him
in the execution of his duties. Neither the attorney-gen-
eral, nor his deputies received a fixed salary, but were
paid for their services in fees. These fees were paid by
the county or city where the services were rendered.

The objections to the continuation of this office arose
from the manner in which the attorney-general was ap-
pointed, the tenure of office, and the extensive patronage
in appointing his deputies.

The method of paying the attorney-general, and his
deputies in fees was also objected to on the ground of
affording greater remuneration than was necessary. It
was estimated that the fees of the attorney-general
amounted to $9000 per annum. In addition to this sufn
the State was paying on the average $1700 yearly to others
than the attorney-general and his deputies, for legal

30 Myers, The Md. Const. 1864, p. 72; J. H. U. Studies, vol. 19.

81 Debates, vol. i, p. 549-

" Act 1816, ch. 247, confirmed by Act 1817, ch. 269.

78 The Maryland Constitution of 1851. [456

services." The great majority of the convention consid-
ered the office unnecessary, and desired its abolishment.

In place of the attorney-general the constitution of 1851
created the office of " State's Attorney." One state's at-
torney was to be elected by popular vote in each county
and in the city of Baltimore. The duties of the state's at-
torneys were defined as being the same as that of attorney-
general and his deputies, whom they superseded. The
term of office was fixed at four years. The salary was to
be paid in fees.*4

The prohibition against imprisonment for debt was a
progressive step, though at the time it called forth adverse
criticism. The Baltimore American in an editorial of June
4, 1851, said that: "The abolishment of imprisonment for
debt discharged not merely the innocent bankrupt, but the
swindler and the whole family of knaves. It paralyzed the
arm of the law, because its processes are of no other avail
than to give notice to the debtor that he may escape with
his means if he will. Its tendency is to destroy the credit
of the poor man, because it offers a temptation to defraud
those on whom his credit must depend." The clause abol-
ishing imprisonment for debt was introduced in the con-
vention by Mr. Presstman, of Baltimore City, and was
passed by a vote of 60 to 5.**

The homestead exemption clause of the constitution was
objected to on the ground of depreciating the value of the
large capital invested in tenements." The amount that
could be exempted from execution for debt was five hun-
dred dollars."

The legislature was prohibited to authorize the issue of
any lottery grants. The same restriction was placed upon
the legislature by a constitutional amendment in 1839.**
Until the expiration of the lottery grants in the State, one

* Debates, vol. i, p. 535. " Const. 1851. art. v.

* Debates, vol. i, p. 448.

M Baltimore American, May 31, 1851.

"Const. 1851, art. iii, sec. 39.

"Act 1839, ch. 31. Confirmed, Act 1840, ch. 261.

457] The Constitution. 79

commissioner of lotteries was to be elected by popular
vote. After the first day of April, 1859, no lottery schemes
could be operated, nor any lottery ticket sold within the
State.38

A new feature in the constitution of 1851 was the pro-
vision for a general corporation law, and the prohibition
against the chartering of a corporation by special act;
except for municipal purposes, and in cases where, in the
judgment of the legislature, the object of the corporation
could not be attained under general laws.40 The old sys-
tem of chartering corporations by special act gave greater
facility for corruption, and consumed much of the limited
time of the legislature.

The liability clause of the constitution relative to banks,
prohibited the legislature from granting thereafter any
charter for banking purposes, or to renew any charter, ex-
cept on the condition that the stockholders and directors
of the bank should be liable to the amount of their respect-
ive shares of stock. A further restriction upon the char-
tering of banks was that no director or other officer of a
bank should borrow any money from that particular
bank.41

There was considerable opposition to this liability clause.
It was claimed that the effect of the restrictions on the
banks, and the double liability of the stockholders would
seriously cripple the State's industrial activities.4* The lia-
bility clause as originally introduced in the convention by
Mr. Sellers, of Calvert county, made the stockholders and
directors responsible in their individual capacities for the
full amount of the bank's liabilities. Mr. Sellers also made
it a penitentiary offence, and the forfeiture of a bank's
charter forever, for the officers of a bank to have any
dealings with the bank with which they were connected,
except in the matter of salaries.43

" Const. 1851, art. vii, sec. 5.

**Art. iii, sec. 47; Act 1852, ch. 23.

41 Art. iii, sec. 45. ** Baltimore American, May 17, 1851.

41 Debates, vol. ii, p. 761.

80 The Maryland Constitution of 1851. [458

The change in the judicial department was the cause oi
much opposition to the adoption of the constitution.44 The
jury was declared to be the judges of law as well as fact
in the trial of all criminal cases.4* All judges were to be
elected by popular vote for a term of ten years. The sal-
ary of the judges of the court of appeals was fixed at
twenty-five hundred dollars per year, and that of the cir-
cuit judges at two thousand. The State was divided into
four, instead of six, judicial districts. The number of
judges in each district was reduced from three to one.**
The court of appeals was composed of four judges; one of
whom was elected from each of the four judicial districts.
The chief judge was to be designated by the governor.
The court of appeals had appellate jurisdiction only, and
its judgment was final in all cases.

In Baltimore City there was established a court of com-
mon pleas, which had civil jurisdiction in all suits where
the debt or damage claimed did not exceed five hundred
dollars; and was not less than one hundred dollars. This
court had also jurisdiction in all cases of appeal from the
judgment of justices of the peace in Baltimore City, and
in all applications for the benefit of the insolvent laws of
the State.47 A superior court of Baltimore City was also
established with jurisdiction over all suits where the debt
or damage claimed exceeded five hundred dollars. Each
of these courts consisted of one judge, elected by the voters
of Baltimore City, for a term of ten years. The salary of
the judges was twenty-five hundred dollars annually.4* A
criminal court of Baltimore City was also established,
which exercised the jurisdiction heretofore exercised by
the Baltimore City court.4* In place of the county courts,
the constitution of 1851 established circuit courts. For
this purpose, the State was divided into eight judicial cir-
cuits. For each of these judicial circuits (except the fifth,

44 Baltimore American. June 3, 1851. ** Art. x, sec. 5.

** Art. iv, sec. 7. 4T Art. iv, sec. 10.

48 Art. iv, sec, 12. * Art. iv, sec. 13.

459] The Constitution. 81

which included only Baltimore City, whose courts are
described above), one judge was to be elected. The cir-
cuit judges were required to hold a term of court at least
twice a year in each county.60 The object in thus reorgan-
izing the courts was to reduce the number of judges, and
thereby decrease the cost of the judiciary. The qualifi-
cations for judges were: that, they must be learned in the
law, having been admitted to practice in the State, and
citizens of the State at least five years. They must be
above the age of thirty years, and residents of the dis-
tricts from which they were elected. A judge of the court
of appeals was re-eligible until he attained the age of sev-
enty years, and not after.51 He was subject to removal for
incompetency, wilful neglect of duty or misbehavior in
office, on conviction in a court of law, or by the governor
upon the address of two-thirds of the members of each
House of the General Assembly.

The treasury department of the State was remodeled.
The constitution provided for a comptroller of the treas-
ury. This was a new officer designed to be a check upon
the treasurer. The comptroller was to be elected by the
people at each election of members of the House of Dele-
gates (i. e. every two years). His salary was twenty-five
hundred dollars per annum. The treasurer was to be
elected on joint ballot, by the two Houses of the General
Assembly at each session. The salary was the same as
the comptroller received. The duties of the comptroller
were: to have the general superintendence of the fiscal
affairs of the State. He must grant all warrants for money
to be paid out of the treasury, and make a report of the
financial condition of the State's treasury within ten days
after the commencement of each session of the legislature.52

The treasurer was required to render his account quar-
terly to the comptroller, and submit at all times to an in-

50 Art. iv, sec. 8.

n Art. iv, sec. 4. 82 Art. vi, sec. 2.

32

82 The Maryland Constitution of 1851. [460

spection of the public funds in his hands. This plan of
giving authority to the comptroller from one source; and
to the treasurer from another, was to make them, in a
measure, independent of each other, and thereby lessen
the danger of collusion.

The constitution of 1851 provided for the establishment
of an office of " Commissioners of Public Works." Such
an office had been long deemed a necessity, but no provi-
sion had been made for its establishment. The control of
the State over works of internal improvement had been ex-
ercised previously by a board of directors, appointed by
the General Assembly. An act of the legislature in 1832
required the governor, with the consent of the council, to
appoint three agents to represent the State at the meetings
of the stockholders of all joint stock companies " incorpo-
rated to make roads and canals, and vote according to the
interest of the State.""

In 1840 the number of the board of directors for the
State was increased to five. The power of appointment
was taken from the governor, and given to the General
Assembly. The directors were required to keep a journal
of the proceedings of the stockholders in their general
meetings, and report the same to the legislature.*4 It will
be noticed that these commissioners were appointed to
represent the State as one of the stockholders, and to cast
the vote of the State in proportion to the amount of stock
held by the State.

The office of commissioners of public works as estab-
lished by the constitution of 1851, consisted of four mem-
bers, who were elected by popular vote for a term of four
years. One of the commissioners was to be taken from
each of the four districts into which the State was to be
divided for that purpose. The first district included the
counties of Allegany, Washington, Frederick, Carroll, Bal-
timore and Harford. The counties of Montgomery, How-

" Act 1832, ch. 318. •* Act 1840, ch. 155.

461] The Constitution. 83

ard, Anne Arundel, Calvert, St. Mary's, Charles and Prince
George's formed the second district. Baltimore City con-
stituted the third district, and the eight counties of the
Eastern Shore the fourth. A residence of five years in the
district from which the commissioner was chosen was re-
quired to be eligible to this office. The commissioners'
duties were, to have supervision over all public works in
which the State was interested as stockholder or creditor.

The commissioners were also given authority to regu-
late the " tolls " so as to prevent injurious competition.
In case of an equal division of opinion among the commis-
sioners, the State's treasurer had the final decision.55 It
will be noticed that the districts were so arranged as to
place the sections of the State with similar interest in the
same district.

County commissioners were to be elected directly by the
people. These officers were previously appointed by the
governor. The election must be by a " general ticket,"
and not by district. The powers of the county commis-
sioners were strictly limited by the legislature. Road su-
pervisors were also to be elected by popular vote, as well
as the county surveyors. The county of Worcester was
required to elect a wreck master. Every commonwealth
officer, with the exception of the governor, whose yearly
income exceeded three thousand dollars was required to
keep a record of all money he received, and to report the
same to the treasurer annually. The excess over three
thousand dollars was to be paid in to the state treasury.
This provision was intended to prevent the enormous sala-
ries received by some of the public officers in fees. It was
said that the clerk of the Baltimore county court received
fifteen thousand dollars annually in fees. Howard dis-
trict, a part of Anne Arundel county, was erected into a
county called Howard. A provision was also made for
the erection of another county out of part of Allegany
county."

18 Art. vii. M Art. viii, sec. 2.

84 The Maryland Constitution of 1851. [462

The constitution of 1851 provided for its own amend-
ment by a convention elected expressly for that purpose.
The legislature was required at its first session imme-
diately succeeding the returns of every census of the
United States, to pass a law for ascertaining the wishes of
the people of the State in regard to the call of a convention
for the purpose of amending the constitution. This was
not done until February 3, 1864." The constitution went
into effect July 4, 1851. It remained in force until 1864,
and is remarkable for its extremely democratic features.
All state officials from the governor to the constable were
to be elected by popular vote. This provision was a reac-
tion against the very conservative and aristocratic character
of the constitution of 1776.

"Act 1864, ch. 5.

APPENDIX
VOTE FOR THE CALL OF THE CONVENTION OF 1850.

A A FOR. AGAINST.

Anne Arundel .......... ore

Baltimore City ...................... 8o69

eci 1342 365

277 140

90 199
Carroll ............................. ^

Calvert M ............................

Dorchester ......................... 251 309

........................... 2793 155

881 149

Kent ............................... 323 234

Montgomery ........................ 426 186

Prince George's ..................... 162 325

Queen Anne's ....................... 489 328

Somerset ........................... 356 350

Saint Mary's ........................ 129 361

Talbot .............................. 393 279

Washington ........................ 2646 184

Worcester .......................... 460 279

23423 4935

The official count declared a majority of 18,833 for the conven-
tion.

"Returns not given

86

The Maryland Constitution of 1851.

[464

VOTE ON THE ADOPTION OF CONSTITUTION OF 1851.

Anne Arundel .

Allegany

Baltimore

Baltimore City .

Cecil

Caroline

Charles

Carroll

Calvert

Dorchester

Frederick

Harford

Kent

Montgomery . . .
Prince George's
Queen Anne's

Somerset

St. Mary's

Talbot

Washington . . .
Worcester

Majority for constitution, 10,409.

29.025

AGAINST.

III3

703

849

5830

638

340

427

1094
333
488

943
875
443
717
656
517
633
533
340
688
456

18.616

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